Kaefer Integrated Services Pty Ltd

[2020] FWCA 5865

[2020] FWCA 5865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kaefer Integrated Services Pty Ltd
(AG2020/3001)

KAEFER SOUTH AUSTRALIAN OPERATIONS ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 3 NOVEMBER 2020

Application for approval of the KAEFER South Australian Operations Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the KAEFER South Australian Operations Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kaefer Integrated Services Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 20 October 2020.

[3] On 22 October 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) also attended the conference. The CFMMEU were provided until 26 October 2020 to provide a written submission and the Applicant was invited to provide an undertaking by 28 October 2020.

[4] On 26 October 2020, the CFMMEU provided a written submission and modelling. I have received this submission pursuant to s.590 of the Act so as to inform myself of the issues. The CFMMEU is not a party in this matter. The CFMMEU contend that the proposed Agreement:

•  Was not genuinely agreed

•  Excluded certain National Employment Standard (NES) provisions

•  Permitted the direction of unreasonable overtime

•  Does not meet the Better Off Overall Test (BOOT), and specifically

•  Removes the entitlement to overtime if a ten hour break after overtime has not been provided

•  Provides for a lesser redundancy entitlement than the relevant Award

•  Does not provide for Accident Pay

•  Contains FIFO terms inconsistent with the relevant Award

[5] The CFMMEU appears to have used daily-hire rates, with the inclusion of the highest industry allowance in its BOOT calculations. The Commission has used weekly hire rates, with the inclusion of the highest industry allowance and on this basis, and in conjunction with the undertaking provided, I am satisfied that the BOOT is met.

[6] The Applicant has submitted an undertaking in the required form dated 2 November 2020. The undertaking deals with the following topics:

•  Notwithstanding clause 15(e), an employee who takes a period of annual leave on a day will be paid for, and have their annual leave balance reduced by, the employee’s ordinary hours of work for that day.

•  Casual employees will be entitled to a payment of four hours’ work per engagement on each occasion that they are required to attend work.

•  In relation to clause 13(a)(vii) of the Agreement, an employee will be a shiftworker for the purposes of the NES where:

•  for an employee performing on-site building work, the employee is engaged to work in a system of consecutive shifts throughout the 24 hours of at least six consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of the Applicant) and then employee is regularly rostered to work those shifts;

•  for an employee performing work other than on-site building work, where the employee is a 7 day shiftworker and is regularly rostered to work on Sundays and public holidays.

•  In relation to clause 13(a), a morning shift means a shift commencing at or after 4.30am and before 1.00pm, an afternoon shift means a shift commencing at or after 1.00pm and before 3.00pm and a night shift means a shift commencing at or after 3.00pm and before 4.30am.

•  In relation to clause 13(d), shiftworkers will be paid the base rate applicable to their classification plus a loading of 25% when working a morning shift and 50% when working an afternoon or night shift.

•  Employees performing on-site building work will receive annual leave loading in accordance with clause 38.2(b),(c) of the Building and Construction General On-site Award 2010.

•  Employees performing work other than on-site building work will receive annual leave loading in accordance with clause 34.4 of the Manufacturing and Associated Industries and Occupations Award 2020.

•  Redundancy has the same meaning as it is given in clause 17.2 of the Building and Construction General On-site Award 2010 for the purposes of employees who are performing on-site building work.

•  Employees will receive redundancy benefits in accordance with clause 17.3 of the Building and Construction General On­site Award 2010.

•  Subject to clause 4 of the Agreement, all time worked by an employee in excess of 7.6 hours on any one day or in excess of the ordinary weekly hours, shall be paid for at the rate of time and a half for the first two hours and at double time thereafter. Overtime rates are paid instead of, and are not cumulative upon, any loadings or penalty rates.

•  Clause 27 of the Building and Construction General On-site Award 2010 will apply.

•  Table A in clause 24.1 is replaced by the table in the undertaking.

•  Notwithstanding clause 26(b) and (d) of the Agreement, clause 24 of the Building and Construction General On-site Award 2010 will apply.

•  Notwithstanding clause 16.4 of the Agreement, when an employee is absent because of unforeseen illness, injury or emergency they must notify their immediate Supervisor as early as possible giving the reason for absence and an estimated date or time of return.

[7] A copy of the undertaking has been provided to the bargaining representative and to the CFMMEU and I have sought their views in accordance with s.190(4) of the Act. Neither the bargaining representative, nor the CFMMEU, expressed any view on the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement. As identified earlier, the BOOT issues raised have been addressed. The NES precedence clause and the undertakings remedy any NES concern. I am satisfied on the material before me that the Agreement was genuinely agreed.

[9] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[10] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 2 November 2024.

COMMISSIONER

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