Liberty Ind Pty Ltd T/A Liberty Industrial
[2024] FWCA 2062
•4 JUNE 2024
| [2024] FWCA 2062 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Liberty Ind Pty Ltd T/A Liberty Industrial
(AG2024/1410)
LIBERTY INDUSTRIAL NATIONAL ENTERPRISE AGREEMENT 2024 - 2028
| Decommissioning, demolition, deconstruction and remediation services industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 4 JUNE 2024 |
Application for approval of the Liberty Industrial National Enterprise Agreement 2024 – 2028
An application has been made for approval of an enterprise agreement known as the Liberty Industrial National Enterprise Agreement 2024 – 2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Liberty Ind Pty Ltd T/A Liberty Industrial. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.
Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award. Here the relevant award is the Building and Construction General On-site Award 2020 (the Award).
A matter was raised with the applicant in respect of pay rates for apprentices and trainees contained at Annexure 2 of the Agreement to assess whether these employers are better off as the industry allowance in the Award was not otherwise provided for. The applicant explained that the industry allowance is built into the rate of pay and the combination of the rate of pay and site allowances provided for at clause 4.6(a) produces a rate of pay better off overall compared to the Award. The applicant submitted that it does not currently employ or envisage that any employees will be engaged as apprentices until on or after 1 July 2024. In its response, the applicant notes the application of clause 4.6(a) applies to hours worked only and does not apply when personal leave or annual leave is utilised. To address this the applicant has provided an undertaking to indicate that employees engaged in the classification of Liberty Worker Trainee or Liberty Apprentices will receive the rate of pay in Annexure 2 to the extent the Award applies a more generous rate of pay compared the Agreement, the Award will be applied.
A further issue was raised in respect of various terms which appeared to be less beneficial when compared to the Award. I was concerned that the Agreement appeared to be silent on a number of safeguards for part time employees which are provided for in the Award and whether these deficiencies may result in financial and non-financial detriment. The applicant provided an undertaking to address this matter.
I raised a further concern that clause 5.1 of the Agreement provides for the ordinary span of Monday to Sunday, however the Agreement does not provide for weekend penalties. The applicant explained that weekend penalty rates are expressed as ‘overtime’ in accordance with clause 5.3(e) to 5.3(g). For the avoidance of doubt, the Applicant submitted the rates described apply to all work performed in accordance with each clause and provided undertakings on this issue.
Another matter was raised going to whether the annual leave loading for shiftwork can be viewed as more beneficial than the Award for employees engaging in shiftwork. In response the applicant has addressed this issue with an provided an undertaking.
Given the explanations provided by the applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. A copy of the undertakings in relation to the matters raised is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the undertakings and the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.
The Agreement was approved on 4 June 2024, rather than the earlier date stated at clause 2.4(e) and, in accordance with s.54, will operate from 11 June 2024. The nominal expiry date of the Agreement at clause 2.4(e) is 4 June 2028.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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ANNEXURE A
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