Marshall & Brougham (Constructions) Pty Ltd

[2018] FWCA 5877

[2018] FWCA 5877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Marshall & Brougham (Constructions) Pty Ltd
(AG2018/1483)

MARSHALL & BROUGHAM CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 18 SEPTEMBER 2018

Application for approval of the Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Marshall & Brougham (Constructions) Pty Ltd. The agreement is a single enterprise agreement.

[2] On 31 July 2018, the Commission contacted the employer raising a number of preliminary issues.

[3] On 8 August 2018, the employer provided an undertaking to the Commission.

[4] The matter was allocated to my Chambers on 17 August 2018.

[5] On 12 September 2018, I conducted a telephone conference with the parties to seek more information about aspects of the undertaking, and on 15 September the Applicant provided an amended undertaking. The undertaking deals with the following topics:

•  For the purposes of clauses 21.4, which relates to the cashing out of annual leave, the employee must retain a balance of at least four week’s annual leave and be paid the full amount that would have been payable if they had taken the leave that was cashed out.

•  In relation to where the employer seeks to terminate an employee on the basis of abandonment of employment, the employee will be provided with notice of the termination in accordance with the National Employment Standards.

•  In relation to employees who are not in receipt of safety officer allowance but work an afternoon/night shift, and the majority of the working hours do not fall after 6:00pm, the employer will assess the employee’s earnings for the pay week and compare it with the employee’s entitlement under the award, and make up any shortfall (plus 1.5%).

[6] No bargaining representatives were appointed.

[7] 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.

[8] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date of the Agreement is 25 September 2021.

COMMISSIONER

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