Higgins Coatings Pty Ltd

[2021] FWCA 6422

[2021] FWCA 6422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Higgins Coatings Pty Ltd
(AG2021/7781)

THE HIGGINS COATINGS PTY LTD (SOUTH AUSTRALIAN AND NORTHERN TERRITORY) REPAINT AGREEMENT 2020-2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 26 OCTOBER 2021

Application for approval of The Higgins Coatings Pty Ltd (South Australian and Northern Territory) Repaint Agreement 2020-2024

[1] An application has been made for approval of an enterprise agreement known as The Higgins Coatings Pty Ltd (South Australian and Northern Territory) Repaint Agreement 2020-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Higgins Coatings Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 18 October 2021.

[3] It is noted that on 18 October 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), despite not being a bargaining agent for the Agreement, wrote to the Commission seeking to be heard in respect of the matter. On 21 October 2021, the CFMMEU filed submissions with their objections to the Agreement being approved, which included issues relating to genuine agreement and the better off overall test (BOOT). I determined to exercise my discretion under s.590 of the Act to receive the submissions from the CFMMEU in order to assist in informing myself about relevant matters in relation to the approval of the Agreement.

[4] On 21 October 2021, I conducted a telephone conference with the Applicant and the employee bargaining representative to seek clarification about aspects of the Agreement, including issues raised by the CFMMEU, and invited the Applicant to address these matters including through the provision of an undertaking.

[5] On 22 October 2021, the Applicant submitted materials, including statements from Mr Michael O’Shaughnessy and Mr Sam Coultas, which satisfied me that the requirements contained in ss.180(3) and (5) had been met.

[6] The Applicant has also submitted an undertaking in the required form dated 22 October 2021. The undertaking deals with the following topics:

•  Despite Clause 10.2 of the Agreement, personal/carer’s leave will be available in accordance with the National Employment Standards (NES), and include the provision of care or support for a member of the employee’s immediate family or a member of the employee’s household in accordance with s.97 of the Act.

•  The employer and an employee may agree to the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday.

•  The rates in the Agreement will apply at test time.

•  The rates of pay for apprentices have been amended in order for the Agreement to satisfy the BOOT.

•  The casual loading detailed in the Agreement shall be paid in addition to other loadings and shift penalties.

•  Despite clause 8.4.1, casual employees will be entitled to the Travel Allowance in the Building and Construction General On-Site Award 2020 (the Award).

•  Despite Clause 9.3 of the Agreement, part-time employees will be paid overtime in accordance with the Award.

•  Employees who work ordinary hours between 5.00am and 6.00am on Monday to Friday shall be paid a penalty of 150%.

•  In so far as Clause 9.7 of the Agreement provides a penalty for hours worked outside of 6.00am to 6.00pm which is less than the Award, the Award penalty shall apply.

[7] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 26 October 2025.

COMMISSIONER

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