Narran Industries Pty Ltd

[2024] FWCA 3189

[2024] FWCA 3189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Narran Industries Pty Ltd

(AG2024/3024)

NARRAN INDUSTRIES PTY LTD ENTERPRISE AGREEMENT 2024 - 2028

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 5 SEPTEMBER 2024

Application for approval of the Narran Industries Pty Ltd Enterprise Agreement 2024 - 2028

Introduction

1. Narran Industries Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Narran Industries Pty Ltd Enterprise Agreement 2024 - 2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Genuine Agreement

1. Section 188(2) of the Act provides:

The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:
 (a) have a sufficient interest in the terms of the agreement; and
 (b) are sufficiently representative, having regard to the employees the agreement is expressed to cover.

Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

1. Principle 17 of the Statement of Principle on Genuine Agreement (the Statement) sets out a number of matters which the Commission is required to take into account when considering whether employees have a sufficient interest in the terms of an enterprise agreement and whether the employees are sufficiently representative which include the extent to which employees are entitled to vote on the enterprise agreement are employed across the full range of classifications in the agreement and types of employment in the agreement.

2. The Agreement applies to employees of the Employer engaged on a full-time, part-time or casual basis in the following classifications:

Level 1 - Labourer performing a range of labouring tasks up to and including work performed to Award CW1(d) level
Level 2 - Excavator Operators up to and including 10 tonne capacity
Level 3 - Excavator Operators in excess 10 tonne capacity

1. At the time of the making of the Agreement, the Employer had two employees who were employed on a casual basis as Excavator Operators. The Employer submits that these employees are employed on a casual basis by agreement and that they may wish to convert to full-time or part-time employment in the future. Furthermore, future employees may want the option of being employed on a full time, part time, or casual basis.

1. The Employer submits that it is not unusual for a small construction contracting operation to have plant operators assisted by labourers, or to execute excavation contract works where plant capacity in excess of 10 tonnes is required. The classification structure allows for this and no more. The classification structure is designed to enable a full and flexible operation of the Employer’s business activities in a commercial construction environment where construction works can vary from project to project. It is also identical to the structure the Applicant had in its previously approved enterprise agreement, Narran Industries Pty Ltd Enterprise Agreement 2019 – 2023 (AG2019/4213)

1. I have had regard to Principle 17 of the Statement and am satisfied, based on the submissions of the Employer that the requirements of s. 188(2) are met in relation to the Agreement.

Delegates’ Rights Term

1. The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Building and Construction General On-site Award 2020 (the Award) is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Appendix 3.

Daily Hire Employees

1. Clause 5.2.3 of the Agreement provides that the rates of pay in Appendix 2 of the Agreement have been calculated to incorporate the Follow-the-Job Loading, Industry Allowance and where applicable, the Tool Allowance. This appears to indicate that the Agreement covers Daily Hire employees. A level 1 Daily Hire employee would not be better off overall than under the Agreement as the rate of pay falls below the Award. However, clause 4.2.1 of the Agreement states that all full-time or part-time employees engaged in building and construction work shall be employed on a weekly hire basis. Employees engaged on a weekly hire basis are better off overall under the Agreement compared to the Award.

1. The Employer submitted that the indirect reference to Daily Hire employees in clause 5.2.3 is an administrative error and that this clause should only refer to the industry and tool allowances. I am satisfied having regard to those submissions that the Agreement will not apply to Daily Hire employees.

Section 186, 187, 188 and 190

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2024. The nominal expiry date of the Agreement is 5 September 2028.

DEPUTY PRESIDENT

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