K&W Dirtworx Pty Ltd as Trustee for Kickbusch and Wode Family Trust T/A K&W Dirtworx

[2017] FWC 3071

[2017] FWC 3071

The attached document wholly replaces the document previously issued with the code [2017] FWCA 2983 due to incorrect referencing.

Brad Taylor

On behalf of the Associate to Commissioner Roe

Dated 6 June 2017

[2017] FWC 3071

FAIR WORK COMMISSION

DECISION

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

K&W Dirtworx Pty Ltd as Trustee for Kickbusch and Wode Family Trust T/A K&W Dirtworx
(AG2017/1124)

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 6 JUNE 2017

Application for approval of the K&W Dirtworx Single Enterprise Agreement 2017 – not approved.

[1] An application has been made for approval of an enterprise agreement known as the K&W Dirtworx Single Enterprise Agreement 2017 (the Agreement). It has been made by K&W Dirtworx Pty Ltd as Trustee for Kickbusch and Wode Family Trust T/As K&W Dirtworx (the Applicant). The Agreement is a single enterprise agreement.

[2] On the 27 April 2017, the Commission sent correspondence to the applicant advising them that upon review of the application documents the Commissioner had a number of concerns regarding whether the agreement satisfies the requirements of the Fair Work Act 2009 (The Act). The concerns were as follows:

1. The Commissioner notes that the agreement signature page does not contain the employers address or the employees position/authority to sign the agreement. The Commissioner has requested a resigned agreement be provided, ensuring it meets the requirements of 2.06A of the Fair Work regulations.

2. In the F17, Q2.8 requests information be provided on the date of notification time. The Commissioner notes that this question is unanswered and as such is not in a position to approve the agreement. You may wish to provide further submissions regarding this issue.

3. The Commissioner notes that clause 24.6 of the agreement provides for Superannuation but does not state that if the employee does not nominate a fund then the default fund must be a MySuper product, in accordance with s.194(h) of the Act. The Commissioner has requested submissions or undertakings be provided addressing this concern.

4. The Commissioner notes that the Shiftwork provision located at clause 6 does not provide what penalty employees will receive for each shift. The Commissioner has requested submissions or undertakings be provided addressing this concern.

5. The Commissioner would like to inquire if the company policies referred to in clause 64.3 form part of the agreement, specifically the drug and alcohol clause (clause 53) or the general policies clause (clause 64.3).

6. The Commissioner notes that the agreement provides for the option of TOIL instead of overtime payments. The Commissioner is concerned that the agreement does not state that accrued TOIL leave will be paid out upon termination. In addition, the Commissioner notes that TOIL is not provided for under the Building Award. The Commissioner has requested submissions or undertakings be provided addressing this concern.

7. The Commissioner notes that the agreement does not provide for a minimum engagement for weekends or public holidays as per the Building Award. The Commissioner has requested submissions or undertakings be provided addressing this concern.

8. The Commissioner notes that clause 30 states that employees will not undertake any work which would make them eligible for site specific allowances. The Commissioner however notes that the agreement is silent on a number of expense related allowances provided under the Clerks Award. The Commissioner is concerned that the wage rate is not high enough to compensate for these allowances. The Commissioner has requested submissions or undertakings be provided addressing this concern.

9. The Commissioner notes that clause 21.4 of the agreement provides for annualised salaries. The Commissioner has requested further information be provided about how these rates will be calculated and reviewed and has requested that the rates for the annualised salaries be provided.

10. The Commissioner notes there are a number of terms that do not meet the requirements of the NES, Act or Award the Commissioner has requested undertakings be provided addressing the below issues:

● Public Holiday: Clause 42: Does not state that the employer will be entitled to any other state or territory based gazetted public holiday as per S.115 (1)(b) of the Act.
● Personal/ Carer’s Leave: Clause 44.9: The agreement states that if an employee is absent for the day before or after a public holiday and do not present a medical certificate or statutory declaration they will not be paid for such day/s.
● Redundancy (Redeployment): Clause 20: The Agreement provides that employees redeployed as an alternative to redundancy to a position which they are suitably skilled or qualified for shall not receive a reduction to the wage rates, for a period of one month from the date of transfer.  Does not appear as though the Employee has the option to elect whether or not to accept the redeployment option in accordance with the NES.
● Annual Leave: Clause 36.12: The Agreement provides that the employer reserves the right to direct employees to take leave at any time, subject to the operational need of the business. It does not provide for any of the safeguards as provided in the Award.
● Abandonment of employment: Clause 18: The clause does not state that the employer will attempt to contact the employee prior to termination.

[3] The rates of pay in the Agreement are about 2% above the minimum Award rates for clerical employees and about 10% above the minimum Award rates for building employees.

[4] The Applicant provided a response on 28 April 2017, offering an unsigned undertaking and submissions in relation to several issued raised by the Commission. The Applicant made submissions as to why the Agreement provisions in respect to abandonment of employment and public holidays should be found to be acceptable. The Applicant offered an undertaking in respect to a number of other matters.

[5] On 4 May 2017, the Commission sent correspondence advising the applicant that there were still a number of unaddressed issues outstanding from the original correspondence and requested a response from the Applicant. The outstanding issues were as follows:

1. The Commissioner notes that the previously raised issue surrounding the agreement signature page has not been addressed. The Commissioner has requested that this issue be addressed and a resigned copy of the agreement be provided.

2. The Commissioner notes that the previously raised issue surrounding dates in the F17 has not been addressed. The Commissioner has requested that these issues be addressed.

3. The Commissioner is not satisfied with the proposed undertaking regarding annualised salaries. You may wish to make further submissions or provide a revised undertaking regarding this provision.

[6] The Applicant provided a response on 4 May 2017, attaching a revised and signed F17 and making further submissions in relation to time off in lieu and annualised salary arrangements under the Agreement.

[7] On 9 May 2017, a further email was received from the Applicant with a resigned Agreement attached.

[8] On 16 May 2017, the Commission sent correspondence advising that the Commissioner was still not satisfied with the proposed undertakings provided on 28 April 2017 and requested further undertakings be provided to address the Commissioners outstanding concerns. The response outlined why the proposed undertaking in respect to annualised salary was unacceptable as follows:

The Commissioner notes that the provided undertaking regarding annualised salaries states at clause 6(e) that the employer will reimburse the employee for the difference between the amount paid under the annualised salary and the amount paid under the agreement. The Commissioner is concerned that clause 21.6 of the agreement states that employees on annualised salaries will receive no less than they would have earned under the agreement plus 25%. The Commissioner would like to clarify if employees requesting an audit or having an audit conducted on their wages will be paid the additional 25% above what they would have earned under the agreement. In addition, the Commissioner has requested that the undertaking be revised to provide automatic audits upon termination.

[9] The Commission did not receive a response to the correspondence sent to the Applicant on 16 May 2017. The Commission sent a further email on the 25 May 2017 advising that if no response is received the Commissioner will list the matter and decide the matter on the materials provided. The Applicant was asked to provide a response to this email by close of business 29 May 2017.

[10] The Commission did not receive a response from the Applicant. I therefore consider that it is both fair and appropriate that I determine the matter on the basis of material before me. I have determined that the Agreement does not meet the BOOT and that it contains terms which are detrimental when compared to the NES. In these circumstances I have provided the Applicant with reasonable opportunity to provide undertakings which might resolve these concerns. The Applicant has provided unsigned undertakings which resolve some of these concerns. However, the undertaking offered in respect to annualised salaries does not ensure that such employees will be better off overall when compared to the Award.

[11] Based on the material before the Commission, I therefore cannot be satisfied that the application satisfies the requirements of ss.172(2)(b), 186 or 187 of the Fair Work Act 2009.

[12] On that basis the Application is dismissed.

COMMISSIONER

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