John Holland Pty Ltd T/A Territoria Civil

[2018] FWCA 2442

[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

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