Ipad Building Services; AAA Painting Co Pty Ltd and ipad Building Services Pty Ltd T/A AAA Painting Co

[2017] FWCA 884

[2017] FWCA 884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ipad Building Services; AAA Painting Co Pty Ltd and ipad Building Services Pty Ltd T/A AAA Painting Co
(AG2016/6837)

AAA PAINTING CO PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 13 FEBRUARY 2017

Application for approval of the AAA Painting Co Pty Ltd Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the AAA Painting Co Pty Ltd and ipad Building Services Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AAA Painting Co Pty Ltd (AAA) and ipad Building Services Pty Ltd T/A AAA Painting Co (ipad). The Agreement is a multi-enterprise agreement.

[2] The matter was the subject of a hearing on 6 December 2016 in which I raised concerns relating to whether the employees covered by the Agreement had genuinely approved it, and whether the Agreement passed the better off overall test (BOOT) in s.193 of the Act.

[3] I was informed that employees from ipad did not vote on the Agreement, and on 6 December 2016 I found pursuant to s.188 of the Act that agreement had not been genuinely agreed.

[4] Section 184 of the Act has the effect that if a multi-enterprise agreement is made and the agreement was not approved by the employees of all of the employers that made the application, then the bargaining representative must vary the agreement so that the agreement is only expressed to cover each employer whose employees approved the agreement.

[5] The applicant has subsequently modified the agreement such that all references to ipad have been removed in accordance with s.184(2),(3) and (4) of the Act.

[6] With respect to genuine agreement by employees of AAA, on 22 December 2016, the Commission received an Affidavit of Mr Behnam Bahrami dated 13 December 2016. Mr Bahrami is an employee of AAA and was appointed as an employee bargaining representative. He declared that six of the AAA employees are from a non-English speaking background with their first language being Persian. Mr Bahrami asserted that all of the AAA employees can read and understand English and on one occasion he explained the meaning of Clause 7.2 (Overtime and Weekend Work) to an employee in Persian.

[7] Based on the declaration of Mr Bahrami, the Form F16 Application and the submissions made by AAA’s representative, my concerns in relation to the AAA agreement genuinely being agreed to have been alleviated.

[8] My concerns about the BOOT in respect of AAA were discussed in a hearing conducted by telephone on 7 February 2017.

[9] At the telephone hearing, I raised concerns that I was not yet satisfied, as required by s.186(2)(d) of the Act, that the rates of pay in Schedule 1 of the Agreement were sufficiently above the wage rates contained in the Building and Construction General On-site Award 2010 [MA000020] to compensate for the removal of work related allowances.

[10] At the hearing Mr Sean Mehr, on behalf of the applicant, gave sworn evidence about the application of the work based allowances.

[11] Mr Mehr stated:

• Only 50% of the work undertaken by AAA related to commercial premises, the balance being domestic.



• Domestic premises were generally single or double story.



• Only 10% of commercial premises were multi-storey and never more than 15 storeys.



• Only 1 or 2 persons in a crew would spray paint and that on any day this work would last a maximum of 4-5 hours.



• No ‘swing chairs’ had been used in the last 12 months and this was expected to continue in 2017.

[12] Subsequently, AAA provided an undertaking in the following terms:

[13] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement.

[14] Having considered the material before me including the evidence of Mr Bahrami, Mr Mehr and the undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application in relation to AAA Painting Co Pty Ltd for approval have been met.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2017. The nominal expiry date of the Agreement is 13 February 2021.

COMMISSIONER

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