Goldfields Crane Hire Pty Ltd

[2023] FWCA 2326

[2023] FWCA 2326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Goldfields Crane Hire Pty Ltd

(AG2023/2264)

GOLDFIELDS CRANE HIRE ENTERPRISE AGREEMENT 2023

Industries not otherwise assigned
DEPUTY PRESIDENT WRIGHT	SYDNEY, 26 JULY 2023

Application for approval of the Goldfields Crane Hire Enterprise Agreement 2023

Introduction

1. Goldfields Crane Hire Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Goldfields Crane Hire Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 23 June 2023.

Casual employees

1. Casual employees are referred to in the definitions section in Clause 4, but Clause 2 of the Agreement provides that the Agreement does not apply to casual employees. The Employer has submitted that it is not foreseeable that any employee will be engaged on a casual basis. As such, I do not consider that a casual employee is a reasonably foreseeable employee for the purpose of s.193.

Section 196 Shiftworkers

1. The Employer submitted it does not employ shiftworkers as described by clause 24.1(b) of the Mobile Crane Hiring Award 2020 (the Award), which is the relevant Modern Award. The employees covered by the Agreement do not work continuous shifts to support 24/7 operations. Night shifts are irregular, do not form part of a regular rostered requirement and are usually arranged between the Manager and employees. Employees are incentivised and compensated for working night shifts by being paid a night shift loading of 15%.

1. On the basis of the Employer’s submissions, I am satisfied that the Employer does not employ shiftworkers as described by clause 24.1(b) of the Award and as such the Agreement is not required to define or describe employees as shiftworkers for the purpose of the National Employment Standards.

Section 190 Undertakings

1. The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the CFMMEU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 August 2023. The nominal expiry date of the Agreement is 26 July 2026.

DEPUTY PRESIDENT

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