KB Bricklayers

[2016] FWCA 518

[2016] FWCA 518

FAIR WORK COMMISSION

DECISION

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

KB Bricklayers
(AG2015/7677)

KB BRICKLAYERS ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 25 JANUARY 2016

Application for approval of the KB Bricklayers Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the KB Bricklayers Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KB Bricklayers (the Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues. On 19 January 2016 I received a signed undertaking in response to the queries from Joe Kleinschmidt, Operations Manager. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] I advised the parties that I considered that the Agreement consultation and flexibility terms did not meet the requirements of the Act and that the model terms would therefore apply. Mr Earls for the employer requested a hearing to make submissions in respect to the consultation term. In respect to consultation about rosters and ordinary hours of work the Agreement provides that:

“In consultations about changes to regular rosters, or ordinary hours of work, the Company will provide information about the change, invite employees to give their views about the impact of the change, and consider those views.”

[7] I am not satisfied that this meets the requirements of Section 205(1A). It does not require the information to be given to employees and more importantly it does not meet the requirement “to invite employees to give their views about the impact of the change (including any impact in relation to family and caring responsibilities)”. The omission of the words in brackets effects the obligation on the employer to consider views. The legislative intent is clearly to ensure that employees are aware that they can raise impacts that relate to their family and caring responsibilities and to alert employers that they are required to consider employees views about impact on family and caring responsibilities. It is not consistent with the legislation for this specific aspect of the requirement in Section 2015(1A) to be omitted.

[8] As the agreement does not contain a flexibility term that meets the requirements of the legislation, pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement.

[9] As the agreement does not contain a consultation term that meets the requirements of s.205(1) and 205(1A) of the Act, pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 February 2016. The nominal expiry date of the Agreement is 25 January 2020.

COMMISSIONER

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