Meales Concrete Pumping Brisbane Pty Ltd

[2019] FWCA 6988

[2019] FWCA 6988

FAIR WORK COMMISSION

DECISION

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

Meales Concrete Pumping Brisbane Pty Ltd
(AG2019/3332)

MEALES CONCRETE PUMPING BRISBANE PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT BULL	SYDNEY, 14 OCTOBER 2019

Application for approval of the Meales Concrete Pumping Brisbane Pty Ltd Enterprise Agreement 2019.

[1] An application has been filed by Meales Concrete Pumping Brisbane Pty Ltd(the employer) for the approval of an enterprise agreement known as the Meales Concrete Pumping Brisbane Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The employer provided satisfactory responses to various issues raised by the Commission, including the following issues identified below.

Minimum engagement of Casual employees

[3] The Commission raised with the employer that clause 6.3(d) of the Agreement provides that casual minimum engagements are waived if the employee leaves early, whereas the Building and Construction General On-Site Award 2010 (the Award) at clause 14.4 provides a four hour minimum engagement and does not provide for any mechanism to circumvent this.

[4] The employer in response advised that the Agreement is consistent with the Award in that the 4-hour minimum payment applies and has not been altered by the Agreement. If the company has ‘no work’ or is unable to utilise the employee with reasonable duties the 4-hour minimum payment period applies.

[5] This does not apply where an employee seeking to absent themselves from working is entitled to access leave without pay or sign-off early withdrawing their services. Employees that remain ready, willing and able to work will always receive the 4-hour minimum payment.

[6] The employer submitted that some employees are unwilling to remain at site during inclement weather as required by the Award or unwilling to clean vehicles or perform other reasonable tasks at a depot. The Agreement provision is only at the initiative of the employee for their flexibility to avoid the unlawful or unauthorised absence of workers.

Casual Conversion

[7] The Commission raised with the employer that casual conversion as provided in clause 14.8 of the Award does not appear in the Agreement.

[8] The employer confirmed that as the Agreement incorporates the Award at clause 5. The Agreement does not alter or change the application of clause 14.8 of the Award.

Undertakings

[9] The employer also provided undertakings regarding the following:

•  Continuous shift work for employees who operate within the general construction stream will be in accordance with the Building and Construction General On-Site Award 2010: and

•  Notwithstanding the provisions in clause 18 of the Agreement, where fewer than five consecutive night shifts are worked, commencing after 8:00pm and before midnight, employees will remain on penalty rates until the completion of works.

[10] A copy of the undertakings is attached at the end of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial change to the Agreement. Pursuant to s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement.

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

[12] On 13 September 2019, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) wrote to the Commission asserting that it has a material interest in the matter. The CFMMEU confirmed it wished to make submissions in relation to the application and file a Form F18. The CFMMEU requested copies of the employer’s F16, F17 and Notice of Employee Representative Rights (NERR).

[13] On 16 September 2019, the Commission provided to the CFMMEU redacted copies of the F16, F17 and NERR in accordance with the Commission’s administrative file access policy. On the same date, my chambers wrote to the CFMMEU and requested that it provide the reasons for its interest in the employer’s application and any submissions the CFMMEU wished to put by no later than close of business on 23 September 2019.

[14] The Commission as at the time of this Agreement approval has not received any submissions or further correspondence from the CFMMEU in relation to this matter.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is three years from the date of operation of the Agreement.

DEPUTY PRESIDENT

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