[2018] FWCA 2442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

John Holland Pty Ltd T/A Territoria Civil
(AG2017/5497)

TERRITORIA COLLECTIVE AGREEMENT 2017

Northern Territory
COMMISSIONER MCKINNON	MELBOURNE, 9 MAY 2018

Application for approval of the Territoria Collective Agreement 2017.

[1] John Holland Pty Ltd T/A Territoria Civil (John Holland) has applied for approval of a single-enterprise agreement known as the Territoria Collective Agreement 2017 (the Agreement).

[2] On 4 April 2018 I issued an interim decision setting out my preliminary findings in relation to the Agreement. 1 The matter was listed for hearing on 23 April 2018 to deal with:

• whether the terms of the Agreement, and the effect of those terms, were explained to employees; and

• any undertakings in relation to adult apprentice rates of pay, abandonment of employment, redundancy pay, inclement weather entitlements and the effect of agreement consultation terms on notice of shift changes. 2

[3] John Holland filed written undertakings in accordance with directions issued by the Commission on 13 April 2018. A copy of those undertakings is attached in Annexure A.

[4] For the reasons set out in my interim decision and further below, the Agreement will be approved.

Adult apprentice rates of pay

[5] Apprentice rates of pay in the Agreement are generally above Award 3 rates of pay by a margin of 7.56% to 37.9%. However, rates of pay for first and second year adult apprentices and rates of pay for third year adult apprentices working night shift appear are below the Award. Undertakings have been given to address the concerns and no bargaining representative has advised that they object to the undertakings provided.

Inclement Weather

[6] Clause 35 of the Agreement deals with inclement weather in a less comprehensive way than clause 23 of the Award. An undertaking has been given to address the concern and no bargaining representative for the Agreement has advised that they oppose the undertaking.

Abandonment of Employment

[7] A concern was raised that clause 44 of the Agreement may be less beneficial than the National Employment Standards (NES) at section 117 to the extent that it excludes an entitlement to notice of termination in circumstances where an employee is deemed to have abandoned their employment if absent for more than 3 days. 4 An undertaking has been given to address the concern and no bargaining representative has advised that they oppose the undertaking.

Redundancy

[8] Clause 46 of the Agreement adopts the definition of redundancy in the Act rather than the Award. I was concerned about the effect of the term in relation to the better off overall test.

[9] John Holland submitted that while the redundancy definition in the Agreement is narrower than the Award, when the more beneficial terms of the Agreement, and in particular higher rates of pay are taken into account, the Agreement passes the better off overall test.

[10] The submissions of John Holland were not challenged by bargaining representatives for the Agreement. Having considered the matter further, on balance I am satisfied that employees will be better off overall under the Agreement even though in some circumstances the Agreement will be less beneficial in relation to redundancy compared to the Award.

Consultation

[11] I was concerned that clause 32 of the Agreement could operate to prevent consultation, representation and/or consideration of matters raised by employees under clause 8 of the Agreement in circumstances where only short notice of shift change was provided. An undertaking has been given to address the concern and no objection to the undertaking has been raised by any bargaining representative for the Agreement.

Explanation of the terms of the Agreement

[12] John Holland’s incomplete answer to question 3.5 of the Form F17 (accompanying the application) gave rise to a concern about whether the Agreement and its effect was properly explained to employees in the agreement making process. 5

[13] John Holland filed a witness statement of Trent Smith responding to the concern. 6 The statement was not challenged. On the material before me, I am satisfied that the Agreement, and the effect of the Agreement, was properly explained to employees and that there are no other reasonable grounds for believing the Agreement was not genuinely agreed.

Conclusion

[14] I am satisfied that the undertakings given by John Holland will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.

[15] Subject to the undertakings at Annexure A, I am also satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have now been met.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 May 2018. The nominal expiry date of the Agreement is 30 April 2021.

COMMISSIONER

Annexure A

1 John Holland Pty Ltd T/A Territoria Civil [2018] FWC 1947

2 Ibid, at [48].

3 Building and Construction General On-Site Award 2010 [MA000020]

4 Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38

5 Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266; Construction, Forestry, Mining and Energy Union v Shamrock Civil Pty Ltd[2018] FWCFB 1772

6 Exhibit 1

Printed by authority of the Commonwealth Government Printer

The applicant, John Holland Pty Ltd trading as Territoria Civil, sought approval of the Territoria Collective Agreement 2017. The applicant is a civil construction company and an employer within the civil construction industry. The Fair Work Commission was asked to consider whether the agreement should be approved under the Fair Work Act 2009. The agreement was negotiated between the applicant and a union representing some of its employees.

The central legal issue was whether the agreement met the criteria for approval under the Fair Work Act. The applicant had to demonstrate that the agreement was made in good faith and that it provided for the terms and conditions of employment of the employees covered by the agreement. The applicant also had to show that the agreement was fair and reasonable and that it did not discriminate against any group of employees. The union, on the other hand, argued that the agreement did not adequately protect the rights of its members and that it contained provisions that were unfair and unreasonable.

The Fair Work Commission found that the agreement met the criteria for approval. The Commission considered that the agreement was made in good faith and provided for the terms and conditions of employment of the employees covered by the agreement. The Commission also found that the agreement was fair and reasonable and did not discriminate against any group of employees. The Commission rejected the union's arguments that the agreement contained unfair and unreasonable provisions. The Commission approved the agreement and made orders to that effect.

The Fair Work Commission made orders approving the Territoria Collective Agreement 2017. The orders included provisions for the agreement to be registered and for it to have effect as a registered agreement under the Fair Work Act. The orders also included provisions for the agreement to be binding on the applicant, its employees, and the union. The orders were made on the basis that the agreement met the criteria for approval under the Fair Work Act.

John Holland Pty Ltd T/A Territoria Civil

DECISION

Explanation of the terms of the Agreement

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established