Morgan’s Cranes Pty Ltd T/A Morgan’s Cranes
[2023] FWCA 2482
•9 AUGUST 2023
| [2023] FWCA 2482 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Morgan’s Cranes Pty Ltd T/A Morgan’s Cranes
(AG2023/1092)
MORGAN’S CRANES PTY LTD ENTERPRISE AGREEMENT 2023
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT EASTON | SYDNEY, 9 AUGUST 2023 |
Application for approval of the Morgan’s Cranes Pty Ltd Enterprise Agreement 2023.
Morgan’s Cranes Pty Ltd T/A Morgan’s Cranes (the Employer) has made an application for the approval of the Morgan’s Cranes Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
In the approval process the Commission raised concerns about ordinary hours for part-time employees, variations to ordinary hours outside of the span of hours, and rates for work on public holidays. The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.
Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was not a bargaining representative for the Agreement. The CFMMEU nonetheless made submissions opposing the approval of the Agreement. The CFMMEU raised eight matters that were said to support its contention that the Agreement does not pass the BOOT.
Early starts
The span of ordinary hours in the Agreement is 6:00am to 6:00pm Monday to Friday. Clause 18.3 of the Agreement allows for an early start when hot weather is forecast:
“18.3 Where the official Bureau of Meteorology forecast for the day, for the area in which the work is to be undertaken, is for a maximum temperature in excess of 35°C, ordinary hours may commence at 5:00am.”
The CFMMEU argued that:
“The effect of this clause is to deprive workers of the entitlement to be paid broken shift penalty rates which would otherwise arise under Proposed Agreement cl 21.4(c). The penalty rate which would otherwise apply is 150% for the first two hours and 200% thereafter: cl 20.3.”
Clause 21.4(c) of the Building and Construction General On-site Award 2020 (Award) is in the following terms:
“In the case of broken shifts (i.e. less than 38 ordinary hours worked over 5 consecutive shifts Monday to Friday) the rates prescribed will be 150% for the first 2 hours and 200% thereafter.”
I do not agree with the CFMMEU’s interpretation of the underpinning Award. The possibility of an ad-hoc 5:00am start does not engage the shift-work provisions. I agree with the Employer’s submission that “it can only be a shift if there are recurring periods where other workers come perform the same jobs in rotation. This conceptualisation is consistent with the definition for shift work for civil construction work at clause 17.2(a) of the Award.”
Clause 17.2 of the Award defines “shiftwork” to be:
“any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously.”
Paid and unpaid meal breaks
The CFMMEU argued that the Award provided for a paid 30-minute break for day workers as well as a paid 10-minute break. The Award in fact provides for a “cessation of work and of working time” for not less than 30 minutes for the purpose of a meal (Clause 18.1), which is not a paid break. Under the Proposed Agreement, there will be a 20-minute paid break instead of the 30-minute unpaid and 10-minute paid break under the Award. The Employer said this is “at worst a neutral consideration, because employees forego an unpaid break but receive a longer paid break and conclude ordinary hours earlier”. Despite the Employer’s submission I accept that this could be understood to be a detriment.
Living away from home – meals
The CFMMEU argued that Clause 26 (Living away from home) is potentially less beneficial than the Award as it imposes a fixed amount for a meal allowance. The Award refers to employees being fully reimbursed for all reasonable meal expenses incurred (clause 25.3).
The Employer submitted:
“The Proposed Agreement provides two options of LAFHA, including the Applicant either:
i.Providing accommodation and three meals per day, plus an incidental allowance of $45.00 per night; or
ii.Paying the living away for home allowance in Appendix A, which is $90.00 per day or $630 per week.
Both provisions under the Proposed Agreement are more beneficial than the Award because employees receive a higher monetary entitlement. A possibility that an employee may on a particular occasion incur a greater meal does not make it less beneficial.”
I accept the Employer’s submission and do not regard the Living away from home – meals provision to be less beneficial than the Award.
Living away from home – rest and recreation benefit
The CFMMEU also seems to rely on the absence of a provision for rest and recreation entitlements. Clause 25.6(f) of the Award applies when “an employee is engaged on a job which qualifies the employee for the provisions of this clause and the duration of work on the job is scheduled for more than 8 weeks.”
I accept the following submission by the Employer:
“The Applicant acknowledges that the Agreement does not provide a rest and recreation benefit as provided for by clause 25.6(f) of the Award. Where the Applicant requires employees to live away from home, these are typically for periods of under a week. At most, employees will be required to live away from home for a two-week period. If necessary, the Applicant can provide a statement to this effect. The Applicant’s working patterns would never trigger the Award’s rest and recreation benefit because living away from home is never scheduled for more than eight weeks.”
Superannuation
Both the CFMMEU and the Employer agree that the Agreement does not provide for superannuation benefits for periods where an employee is absent from work because of work related injury or illness. I accept that this difference between the Agreement and the Award is potentially less beneficial in some limited circumstances.
I note that the superannuation provisions in the Award are said to supplement rights and obligations found in legislation (clause 28.1(b)) and that the entitlement to superannuation contributions during work-related injury or illness is subject to certain conditions (clause 28.5(b)).
Shut down periods/direction to take unpaid leave
The CFMMEU relies on a Determination (see PR751044) varying the Award to remove a provision that allowed employers to direct employees to take unpaid leave during annual shut down periods. The determination was made on 3 March 2023 and took effect from 1 May 2023. The test time for the Agreement (s.193(6)) is 18 April 2023 and as such shut down provision in the Agreement was not less beneficial than the Award provision at the test time.
Stand down provision
The Stand down provision in the Agreement mirrors s.524 of the Act. The Award does not contain any comparable provision. The CFMMEU argued that the Agreement term is less beneficial than the Award. The Award entitlements must necessarily be understood in conjunction with any rights an employer might have under s.524. I do not find that the Agreement is less beneficial than the Award in this regard.
Travel Allowance
The CFMMEU submitted that the clause 25.8 (Travel Allowances) of the Agreement is less beneficial than the Award, insofar as no travel allowance is payable for travel within a 50km radius of the Adelaide GPO.
The Employer submitted:
“The CFMMEU’s submission on travel allowance is based on a misunderstanding of the travel clause in the Proposed Agreement.
When employees make their own arrangements to get to and from a work location, they will be paid the Fares Allowance in Appendix A ($30.00 per day). This allowance applies irrespective of whether employees work within, or outside, a 50km radius of the Adelaide GPO. Given the higher daily amount paid, this clause is more beneficial than the travel allowance provided under the Award.”
The Employer’s explanation is consistent with Clause 25 and Appendix A of the Agreement and I am satisfied that the terms of the Agreement are not less beneficial than the Award.
As such I accept that two of the matters raised by the CFMMEU (unpaid meal breaks and superannuation) could be understood to be less beneficial than the Award in certain circumstances.
Other provisions of the Agreement are superior to the Award and I am satisfied that the Agreement passes the better off overall test.
Provision of Incorporated Materials
In the course of responding to the CFMMEU’s submissions the Employer raised the following in relation to the provision of incorporated materials:
“In reviewing the materials provided as part of this application, the Applicant has identified an error in its F17 that it wishes to correct.
At section 22 of the F17, the Applicant has stated that it provided the incorporated award by email to employees on 9 March 2023. While the email contained the Proposed Agreement and Guidance Notes, it did not contain the Award.
The Applicant acknowledges that this is at odds with 180(2)(a)(ii) of the FW Act, which requires all materials incorporated by reference to be provided to employees. Despite this omission, the Applicant requests that the Deputy President exercise direction under section 188(2)(a) to be satisfied the agreement has been genuinely agreement.
The Applicant requests the Deputy President exercise this direction in the context of all employees voting in favour of the Proposed Agreement, the Award being readily and easily accessible online and that the explanation of the Proposed Agreement was done in reference to the current, similar enterprise agreement. Employees have suffered no disadvantage due the Applicant’s omission.”
The Employer’s candour is appreciated and I am satisfied that the agreement would have been genuinely agreed to within the meaning of s.189(1) but for the procedural error and therefore that the Agreement has been genuinely agreed to for the purposes of ss.186 and 188.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2023. The nominal expiry date of the Agreement is 9 August 2026.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE521051 PR765048>
Annexure A
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