Milbrae Concrete Pty Ltd

[2016] FWCA 2383

[2016] FWCA 2383

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Milbrae Concrete Pty Ltd

(AG2016/2731)

MILBRAE CONCRETE PTY LTD ENTERPRISE AGREEMENT 2016

Road transport industry

DEPUTY PRESIDENT SAMS SYDNEY, 14 APRIL 2016

Application for approval of the Milbrae Concrete Pty Ltd Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed

by Milbrae Concrete Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work

Commission (the ‘Commission’) of a single enterprise agreement to be known as the Milbrae

Concrete Pty Ltd Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was

negotiated the Australian Workers’ Union Greater New South Wales Branch (the ‘Union’)

and Mr V Campbell, Mr M Valenzisi and Mr W Teerman, nominated employee bargaining

representatives (EBR) and is to cover 24 employees who are engaged as Agitator Truck

Drivers. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to

be covered by this Agreement has been fairly chosen.

[2]        The employees were last notified of their representational rights on 21 September

2015, and voting for the Agreement’s approval took place on 23 March 2016. The time limits

under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement's approval, all

17 of the employees who cast a valid vote, agreed to approve the Agreement. The application

for approval of the Agreement was lodged on 5 April 2016, thereby satisfying s 185(3) of the

Act.

[3]        In the Employer’s Declaration in support of the application (Form F17) Ms T Cotter,

Business Services Manager, identified the Road Transport and Distribution Award 2010

[MA000038] as the relevant reference instrument for the purposes of the Better Off Overall
[2016] FWCA 2383

Test (the ‘BOOT’). Ms Cotter said that the Agreement provides for higher rates of pay and

additional leave, although it provides lower afternoon shift loading. On balance, I am satisfied

that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility

and consultation terms at clauses 27 and 24 respectively, and a disputes resolution procedure

at clause 25 provides for conciliation and arbitration by the Commission.

[4]        At a hearing of the application on 13 April 2016, Ms Cotter appeared for the applicant

and Mr Cowdrey for the Union. Ms Cotter outlined the main features of the Agreement and

submitted that all of the legislative requirements for approval of the Agreement have been

satisfied and the Agreement should be approved by the Commission. She added that rates of

pay are to be increased in accordance with the Commission’s Minimum Wage Review

decisions. The Union had filed a Declaration in relation to the application (Form 18)

supporting the approval of the Agreement and giving notice that it wishes to be covered by

the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be

covered by the Agreement. I am satisfied that the employees genuinely agreed to approve the

Agreement.

[5]        Having heard the parties’ submissions and upon reviewing the terms of the

preapproval process documentation and the Agreement itself, I am satisfied that all of the

requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this

application, have been met. Accordingly, I approve a single enterprise agreement known as

the Milbrae Concrete Pty Ltd Enterprise Agreement 2016. Pursuant to s 54 of the Act, the

Agreement shall operate from 20 April 2016 and have a nominal expiry date of 13 April 2020.

DEPUTY PRESIDENT

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