Onesteel Recycling Pty Limited T/A InfraBuild Recycling

[2021] FWCA 5994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Onesteel Recycling Pty Limited T/A InfraBuild Recycling
(AG2021/7283)

INFRABUILD RECYCLING SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2021-2024

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 24 SEPTEMBER 2021

Application for approval of the InfraBuild Recycling South Australia Enterprise Agreement 2021-2024

[1] An application has been made for approval of an enterprise agreement known as the InfraBuild Recycling South Australia Enterprise Agreement 2021-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Onesteel Recycling Pty Limited T/A InfraBuild Recycling (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 September 2021.

[3] On 21 September 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] The Applicant has submitted an undertaking in the required form dated 23 September 2021. The undertaking deals with the following topics:

• An employee failing to complete a leave application form when taking personal or carer’s leave will not exclude them from their leave entitlement.

• An employee who takes personal leave for more than two consecutive days must provide evidence that would satisfy a reasonable person as per s.107(3) of the Act.

• Personal/carer’s leave will accumulate from year to year and employees will not be restricted to accessing only 10 days per year.

• Any deductions made under clauses 2.2(3) and 6.2(2) of the Agreement may only be made from wages due to the employee.

• Clause 6.1(5)(b) of the Agreement will not be applied in a way which excludes Apprentices from notice of termination.

• An employee who is offered suitable alternative employment after being made redundant will only be excluded from redundancy pay entitlements upon successful application to the Fair Work Commission for a variation in accordance with s.120 of the Act.

• Clause 7.5(3) of the Agreement will be applied in a manner which is no less favourable than the corresponding redundancy entitlements under the National Employment Standards (NES).

• Time off in lieu (TOIL) that is accrued and unused at the end of a 3-month period, or on termination, will be paid out at the overtime rate applicable to the overtime when worked.

• In the event of any weekend shift work being worked, the Company will apply the corresponding penalty rate provisions of Clause 33.2(i) and (j) of the Manufacturing and Associated Industries and Occupations Award 2020.

• The weekly and hourly rate applicable to Grade 5, Level 6 in “Schedule 2 – Wage Rates” referenced by a “+” symbol will always be more than the corresponding weekly and hourly wage rate specified for Grade 5, Level 5.

[5] No bargaining representatives were appointed.

[6] 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.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] 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.

[9] 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 1 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Onesteel Recycling Pty Limited T/A InfraBuild Recycling, the Fair Work Commission was asked to approve an enterprise agreement between the employer and its employees. The agreement was for the period 2021 to 2024 and covered workers in South Australia. The Commission was required to determine if the agreement met the necessary criteria under the Fair Work Act 2009 for it to be approved and registered. Key issues included whether the agreement provided for the employees' pay and conditions, ensured a fair and reasonable process for resolving disputes, and complied with the procedural requirements for approval.

The legal issues before the Commission centred on whether the agreement met the procedural and substantive requirements for approval under the Fair Work Act. Procedurally, the Commission had to consider whether there was genuine agreement between the employer and the employees, evidenced by the necessary majority of employee votes in favour of the agreement. Substantively, the Commission had to assess whether the agreement provided for fair and reasonable terms and conditions of employment, including minimum rates of pay, leave entitlements, and dispute resolution mechanisms. The Commission also considered whether the agreement unfairly disadvantaged any group of employees.

The Commission found that the agreement had been genuinely agreed to by the requisite majority of employees, and that it provided for fair and reasonable terms and conditions of employment. The agreement included provisions for minimum rates of pay, leave entitlements, and dispute resolution mechanisms. The Commission was satisfied that the agreement did not unfairly disadvantage any group of employees and that it complied with the requirements of the Fair Work Act. Therefore, the Commission approved the InfraBuild Recycling South Australia Enterprise Agreement 2021-2024, and it was registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established