Go Traffic Pty Ltd
[2023] FWC 3278
•12 DECEMBER 2023
| [2023] FWC 3278 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Go Traffic Pty Ltd
(AG2023/3021)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 12 DECEMBER 2023 |
Application for approval of the Go Traffic Pty Ltd – VIC Enterprise Agreement 2023-2026
The applicant, Go Traffic Pty Ltd operates a traffic management business specialising in servicing the utilities, maintenance, construction, rail, government, events, and infrastructure sectors. It made an enterprise agreement titled “Go Traffic Pty Ltd – VIC Enterprise Agreement 2023-2026” (Agreement) on 17 August 2023 when a majority of employees covered by the Agreement casting a valid vote, voted to approve the Agreement. The applicant and the employees covered by the Agreement are presently covered by an operative enterprise agreement titled “Go Traffic Enterprise Agreement 2016-2020” (2020 Agreement).
On 30 August 2023, the applicant applied under s 185 of the Fair Work Act 2009 (Act) for approval of the Agreement by the Commission. The Australian Workers’ Union (AWU) is a bargaining representative for the Agreement. The AWU has indicated that if the Agreement is approved, it wants to be covered by the Agreement, but its principal position is that the Agreement does not pass the better off overall test (BOOT) and so the approval requirement in s 186(2)(d) of the Act has not been met.
Before hearing the application, I raised several concerns with the applicant about whether some approval requirements had been met. Without descending into the detail of those matters, the applicant has either provided a satisfactory explanation to assuage my concern or has proffered undertakings (addressing overtime for permanent and part time employees and public holiday penalties for casual employees) which I consider meet most of the concerns. However, for the reasons explained below, I do not consider the Agreement passes the BOOT because as at test time some prospective and current employees would under the Agreement be classified and paid as a new entrant ($25.33 per hour inclusive of all allowances) whereas if the Building and Construction General On-site Award 2020 (Award) applied, those persons or at least some of them would be classified and paid as a construction worker level 2 (CW/ECW 2) traffic controller ($25.44 per hour plus an all-purpose industry allowance of $59.70 per week ($1.57 per hour)).
The Agreement contains a classification titled “New Entrant”.[1] The classification is new in the sense that there is no equivalent classification in the 2020 Agreement. The classification descriptors are as follows:
• Successfully completed a relevant structured training program equivalent to the required competency standards.
• Works to the extent of their skills, competence, and training. Employees will acquire skills, both formal and informal, over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
• Work in a safe manner.
• Work from instructions and procedures.
• Responsible for the quality of their own work subject to general supervision.
• Undergo training and a probationary period of 400 documented hours.
Unlike the Award, despite the reference to “indicative tasks and duties” these are not, described or otherwise identified in the Agreement.
Progression beyond the new entrant classification in the Agreement is contingent on meeting the following criteria:
• Complete 400 hours documented.
• Competent in Vehicle Driving VoC.
• Competent in Go Traffic Level 1 Training package.
• Competent in minimum requirements of TC1.
The Award contains the following relevant classificational definitions and descriptions.
First, it defines “[n]ew entrant” as “an employee who has never previously worked within the on-site building construction industry. If there is any doubt as to the status of an employee in this regard, the following documentation may be regarded as prima facie evidence that an employee is not a new entrant:
• documentary evidence concerning registration with any of the construction industry portable long service leave schemes; or
• documentary evidence concerning contributions into an approved industry superannuation fund (e.g. Construction and Building Industry Super (Cbus)).”[2]
Second, a new entrant under the Award is classified as a Construction worker level 1/Engineering construction worker level 1 (CW/ECW 1) according to the progression set out at clause A.2.1(iv) of Schedule A to the Award which provides that a CW/EC 1 (level d) will have:
“. . . obtained skills equivalent to the above gained through work experience subject to competency testing to the prescribed standards:
CW/ECW 1 (level a)
(new entrant)Upon commencement in the industry CW/ECW 1 (level b) After 3 months in the industry CW/ECW 1 (level c) After 12 months in the industry CW/ECW 1 (level d) Upon fulfilling the substantive requirements of Construction Worker 1/Engineering Construction Worker 1 as detailed above
”
Third, the relevant equivalent skills to which reference is made above are:
• successfully completed, in accordance with RPL (recognition of prior learning) principles, a construction skills test equivalent to the required competency standards; or
• successfully completed a relevant structured training program equivalent to the required competency standards; or
• successfully completed an Engineering Construction Industry Skills Certificate Level 1 consisting of 16 appropriate modules; or formally recognised equivalent accredited training so as to enable the employee to perform work within the scope of this level.
As is plain from the use of the conjunction “or”, only one of these “skills” need be obtained before classification at CW/ECW 1 (level d) of the Award is appropriate. The alternative route to obtaining equivalent skills is as set out in the table above.
Fourth, under the Award, an employee at the CW/ECW 1 (level d) performs work above and beyond the skills of an employee at CW/ECW 1 (level c) and to the level of their training and:
• is responsible for the quality of their own work subject to general supervision;
• works under general supervision either individually or in a team environment;
• exercises discretion within their level of skills and training;
• works in a safe manner;
• identifies basic faults in materials and equipment;
• interacts harmoniously with employees of other companies on-site;
• adapts to a changing work environment;
• communicates essential information; and
• works from instructions and procedures articulated in written, spoken and/or diagrammatic form.
These CW/ECW 1 (level d) descriptors of work bear a striking similarity to the following features of the new entrant classification in the Agreement:
•Responsible for the quality of their own work subject to general supervision.
•Works to the extent of their skills, competence, and training.
•Works in a safe manner.
•Works from instructions and procedures.
Thus, even if a new entrant under the Agreement was not concerned with traffic control duties and was a new entrant to the industry, the rate of pay under the Agreement is less than the corresponding rate of pay to which such an employee would be entitled under the Award when the all-purpose industry allowance is included, as shown in the table below:
| Award Classification | Agreement Classification | Award Rate | Agreement Rate | Percentage Difference |
| CW1a | NE | $25.28 | $25.33 | +0.20% |
| CW1b | NE | $25.75 | $25.33 | -1.63% |
| CW1c | NE | $26.07 | $25.33 | -2.84% |
| CW1d | NE | $26.51 | $25.33 | -4.45% |
However, as will be evident from the discussion below, I consider the relevant comparator is the new entrant classification and pay rate under the Agreement with the CW/ECW 2 classification and pay rate under the Award.
Clause A.2.2 of the Award sets out the classification description and indicative skills, duties, and tasks of a Construction worker level 2/Engineering construction worker level 2 (CW/ECW 2). By clause A.2.2(d) of Schedule A to the Award the “CW/ECW 2 classification incorporates the following broadbanded award classifications:
. . .
•Traffic controller
. . .”
The use of the verb “incorporates” by reference to the CW/ECW 2 classification means that a traffic controller (along with the several other classifications listed in clause A.2.2(d)) is taken in or contained as part of the whole of the Construction worker level 2/Engineering construction worker level 2 (CW/ECW 2) classification.
Thus, an employee who is a traffic controller employed by an employer covered by the Award will be classified at the level 2/Engineering construction worker level 2 (CW/ECW 2) classification and entitled to the minimum rate of pay specified in clause 19.1(a) for that classification plus the all-purpose industry allowance specified in clause 22.1(a). This is so irrespective of the experience level of the traffic controller. There is no requirement for an employee to have accumulated 400 documented hours of experience as a traffic controller under supervision, as seems to be the requirement under the Agreement.[3]
The new entrant classification in the Award is concerned with a person who has not worked in the construction industry as the definition of “new entrant” earlier set out makes clear. As at test time, a person employed by the applicant or a prospective employee who is not new to the industry within the meaning and description of a new entrant under the Award but who has not worked as a traffic controller before, would under the Agreement be a new entrant required to complete 400 documented hours of experience as a traffic controller under general supervision but under the Award the person would be classified at the level 2/Engineering construction worker level 2 (CW/ECW 2). The relevant rates comparison is set out below:
| Award Classification | Agreement Classification | Award Rate | Agreement Rate | Percentage Difference |
| FT/PT Employee- CW2 | NE | $27.01 | $25.33 | -6.22% |
| Casual Employee- CW2 | NE | $33.76 | $31.67 | -6.20% |
In that circumstance, the Agreement does not pass the BOOT as the rates of pay for a new entrant under the Agreement are less than the rates of pay for the level 2/Engineering construction worker level 2 (CW/ECW 2), which is the appropriate classification in the circumstances described. And there are no measurable countervailing improvements in conditions of employment compared to the Award for which the Agreement provides which would allow a contrary conclusion.
Moreover, an employee or prospective employee employed under the Agreement who has yet to accumulate the requisite 400 documented hours of experience but who performs traffic control functions, is responsible for the quality of their own work and is subject to general supervision, is nonetheless a traffic controller. This is after all the applicant’s core business into which employees covered by the Agreement are employed. A traffic controller is one of the broadbanded classifications caught by the level 2/Engineering construction worker level 2 (CW/ECW 2) classification of the Award and is entitled to the rate of pay attached thereto. That rate of pay is higher than the new entrant rate of pay for which the Agreement provides, and there are no offsetting improvements in conditions.
The applicant’s contentions that a new entrant under the Agreement will require general, rather than limited supervision as described by the Award and that such inexperienced employees are subject to general, rather than limited supervision as described by the Award misses the point. The broadbanded classifications listed in the level 2/Engineering construction worker level 2 (CW/ECW 2) classification of the Award are incorporated into the classification, that is, they are taken to be part of the classification. A traffic controller is part of the classification. That an employer chooses, understandably, to supervise an inexperienced employee performing traffic control duties more closely than it would a more experienced traffic controller does not alter the classification under the Award. It is CW/ECW 2.
The Agreement does not pass the BOOT and cannot be approved. I will allow the applicant 7 days from the date of this decision to prepare, consult and file a signed written undertakings which address my concern explained herein, and incorporates the other undertakings already proposed. If acceptable signed written undertakings are not received by my chambers within that time, I will determine the application to approve the Agreement having regard to the reasons set out herein.
DEPUTY PRESIDENT
Appearances:
M Reid for the applicant
S Miller for the Australian Workers’ Union (AWU)
Hearing details:
22 November 2023
Microsoft Teams
Final written submissions:
Applicant: 20 November 2023
AWU: 6 October 2023
[1] Schedule A – Employee classifications, Go Traffic Pty Ltd – VIC Enterprise Agreement 2023-2026
[2] Schedule A—Classification Definitions - A.1 Definition of key concepts and terms, clause A.1.8 Building and Construction General On-site Award 2020
[3] Transcript PN399-PN416
Printed by authority of the Commonwealth Government Printer
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