Max Crane & Equipment Hire (SA) Pty Ltd T/A Max Crane and Equipment Hire

[2021] FWCA 6194

[2021] FWCA 6194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Max Crane & Equipment Hire (SA) Pty Ltd T/A Max Crane and Equipment Hire
(AG2021/7536)

MAX CRANE & EQUIPMENT HIRE (SA) PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 20 OCTOBER 2021

Application for approval of the Max Crane & Equipment Hire (SA) Pty Ltd Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Max Crane & Equipment Hire (SA) Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Max & Crane Equipment Hire (SA) Pty Ltd T/A Max Crane and Equipment Hire (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 30 September 2021.

[3] On 6 October 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] There are three National Employment Standards (NES) issues which require comment:

•  Clause 12.2 of the Agreement provides that, subject to the Act, where the employer’s usual operation or usual practice for allocation of work includes work on a public holiday, the employer may require an employee to work on that day. Section 114 of the Act states that an employer may request an employee to work on a public holiday if the request is reasonable, and the employee may refuse the request if the request is not reasonable, or the refusal is reasonable.

•  Clause 13.4 of the Agreement provides that if an employee gives notice of absence on personal leave after commencement of their shift, they may be required to substantiate the reason for the delay. This may result in more stringent evidence requirements than provided by s.107 of the Act, which requires employees to provide notice as soon as reasonably practicable and evidence that would satisfy a reasonable person.

•  Clause 38.1 of the Agreement defines domestic violence as inclusive of physical, sexual, financial, verbal, or emotional abuse by an immediate family member as defined in the Agreement. Clause 13.3.6 provides a definition of immediate family which does not appear to include a person who is related to the employee by Aboriginal or Torres Strait Islander kinship rules, consistent with s.106B(3)(b) of the Act.

[5] Clause 2.4 of the Agreement is an effective NES precedence clause, in that it states that where there is any inconsistency between the Agreement and the NES, and the NES provides greater benefit, the NES provisions will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[6] The Applicant has submitted an undertaking in the required form dated 18 October 2021. The undertaking deals with the following topics:

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  The company will comply with s.325(1) of the Act when relying on clause 36.7 of the Agreement.

•  Employees that work more than the specified average of 38 ordinary hours per week will be entitled to be paid overtime in accordance with clause 16 of the Agreement (where applicable), and any requirement for employees to work overtime will be implemented in accordance with s.62(3) of the Act.

•  Amendments have been made to Schedule 1 to ensure the Agreement passes the better off overall test (BOOT).

•  Where an employee in classification of “Dogman – Level 1 or 2”, “Rigger Basic – Level 1 or 2” or “Non-slew Crane Operator – Level 1” has not commenced their meal break after 5.5 hours from their normal starting time, the employee will receive overtime rates in accordance with clause 16.3 of the Agreement for the period from 5.5 hours after the normal starting time until a meal break is allowed.

•  In the event that an employee who is within a classification that would otherwise be covered by the Mobile Crane Hiring Award 2020 (the Award)works an afternoon shift as defined in the Award, but not a night shift as defined in the Agreement, or is not provided with one week’s notice of the requirement to work shift work, the provisions of clause 23 of the Award will apply.

[7] On 8 October 2021, the Applicant submitted undertakings which were provided to the bargaining representatives for comment. On 12 October 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) raised a number of issues in respect of that undertaking. An amended undertaking was subsequently provided to the Commission by the Applicant on 14 October 2021, which the CFMMEU also objected to. On 18 October 2021, the Applicant provided undertakings that had been agreed upon between the Applicant and the CFMMEU.

[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.

[9] The CFMMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[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 20 October 2025.

COMMISSIONER

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