Interlink Roads Pty Ltd

[2013] FWCA 3088

[2013] FWCA 3088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Interlink Roads Pty Ltd
(AG2013/6355)

M5 SOUTH WEST MOTORWAY ENTERPRISE AGREEMENT 2012

Road transport industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 MAY 2013

Application for approval of the M5 South West Motorway Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Interlink Roads Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the M5 South West Motorway Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (Greater NSW Branch) (the ‘Union’). The Agreement is to cover 19 employees who are engaged as Toll Collectors by the applicant. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen. I note that the Toll Collectors’ jobs will be redundant when the Motorway reverts to cashless tolling from 1 July 2013.

[2] The employees were last notified of their representational rights on 8 April 2013, and voting for the Agreement’s approval took place on 29 April 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 14 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms M McNamara, HR/IR Manager,identified the Miscellaneous Award 2010 [MA000104] (the ‘Modern Award’) and the M5 South West Motorway Consent Award 2005 [AN120322] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms McNamarasaid that the Agreement does provide for some conditions that are less beneficial than those under the Modern Award, including a lower meal allowance, a casual loading of 20% rather than 25% and the adjustment of rates of pay by 4% every year, rather than 2% every six months. However, the Agreement also provides for a number of terms and conditions that are more beneficial than those under the Modern Award, including higher rates of pay, more generous weekend penalty rates, provision for an Annual Union Picnic Day and a Rostered Day Off. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 43 and 41 respectively, and a disputes resolution procedure at clause 42 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 16 May 2013, Mr B Belling, Solicitor, and Mr A Khandhar, Solicitor, appeared for the applicant and Mr S Crawford and Mr S Bean for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Mr Belling outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that there has been a recent announcement that the Tollway’s toll collection will become cashless from 1 July 2013. Accordingly, the Agreement will have no practical coverage after that date. Nevertheless, the Agreement provides for 6 months probationary redeployment to administrative functions, without prejudice to redundancy entitlements, and it is expected that approximately half of the relevant employees will be redeployed to these roles. Mr Belling also drew the Commission’s attention to cl 39 of the Agreement. He explained that the Agreement provides that employees who are made redundant are to have their redundancy entitlements calculated with reference to an average actual weekly wage over the previous twelve months, rather than to base weekly rates of pay. Accordingly, this would mean that shift penalties and the casual loading would be taken into account when calculating entitlements to redundancy pay. Mr Belling noted that fourteen of the applicant’s nineteen employees are said to be casuals, but are actually part-time employees who are paid the casual loading in addition to entitlements available to permanent employees. Additionally, although designated as casual employees, all employees will be entitled to be paid long service leave pro rata from commencement of employment. Mr Crawford raised concerns that the applicant did not intend that overtime be taken into account for purposes of cl 39. After discussions between the parties, it was agreed that the intention behind cl 39 was that overtime would be taken into account for the purposes of calculating redundancy payments.

[6] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. I also note that two annual pay increases of 4% under the Agreement have already been applied by the applicant from 11 May 2012 and 11 May 2013. Accordingly, I approve a single enterprise agreement known as the M5 South West Motorway Enterprise Agreement 2012. Pursuant to s 54 of the Act, the Agreement shall operate from 23 May 2013 and have a nominal expiry date of 11 May 2015, though I note that it is likely the Agreement will be effectively inoperative from 1 July 2013.

DEPUTY PRESIDENT

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