Interflow Resources Pty Ltd

[2022] FWCA 164

[2022] FWCA 164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Interflow Resources Pty Ltd

(AG2021/9063)

Interflow Resources Pty Ltd, South Australian Workplace Agreement 2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 20 JANUARY 2022

Application for approval of the Interflow Resources Pty Ltd, South Australian Workplace Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Interflow Resources Pty Ltd, South Australian Workplace Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Interflow Resources Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 January 2022.

1. On 13 January 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 18 January 2022. The undertaking deals with the following topics:

·   Clause 29.1 of the Agreement will be interpreted consistently with clause 35 of the Building and Construction General On-site Award 2020 (the Award).

·   Deductions will not be made in a manner that is inconsistent with ss.324-236 of the Act.

·   An employee will be entitled to be represented at all stages of the dispute settlement process under the Agreement.

·   An employee will be required to maintain a minimum of four weeks of annual leave when cashing out their annual leave entitlements.

·   Employees who take personal/carer’s leave will be required to notify their relevant manager as soon as practicable (which may include a time after the leave has commenced) and will be required to provide evidence that would satisfy a reasonable person.

·   Employees will be entitled to take carer’s leave to provide care or support to a member of the employee’s immediate family or household as defined in the Act.

·   Despite clause 22.2 of the Agreement, the company and an individual employee may agree to substitute another day for a day that would otherwise be a public holiday.

·   In a potential abandonment of employment situation, the company will provide the individual employee notice of termination in accordance with the NES.

· Despite clause 7.6.6 of the Agreement, the definition of serious misconduct shall be as contained in regulation 1.07 of the Fair Work Regulations 2009.

·   Any junior employees employed under the Agreement will be paid at the normal wage rates as per clause 15 of the Agreement.

·   Before commencing a period of part-time employment, the individual employee and company will agree in writing that the employee may work part-time, upon the hours to be worked by the employee, the days upon which the hours will be worked and commencing times for work, upon the classification applying to the work to be performed, and upon the period of part-time employment.

·   For all work done by casual employees in excess of eight hours in any day or outside the spread of normal hours, the rates of pay will be 150% for the first two hours and 200% for time thereafter, inclusive of the casual loading of 25%.

·   Where a casual employee is required to work overtime on a Saturday or Sunday they will be paid for least four hours at the overtime rate including the casual loading of 25%.

·   Where a casual employee is required to work shift work in line with clause 18 of the Agreement, shift work penalty rates will apply to the casual employee rate including the casual loading of 25%.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. 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.

1. As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. 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.

1. 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 20 January 2026.

COMMISSIONER

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