DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Piotto Bros Cement Flooring Pty Ltd
(AG2017/2715)

PIOTTO BROS CEMENT FLOORING PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 20 JULY 2017

Application for variation of the Piotto Bros Cement Flooring Pty Ltd Enterprise Agreement 2016.

[1] An application has been made for approval of a variation of an enterprise agreement known as the Piotto Bros Cement Flooring Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Piotto Bros Cement Flooring Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has varied the Agreement by:

● Deleting clause 2.2.3 and the consequential renumbering;
● Replacing the words in clause 2.4.6 “Building Code 2013 (or any replacement)” with “Code for the Tendering and Performance of Building Work 2016”;
● Inserting into clause 5.2.3 a third bullet point with the sentence “This clause operates subject to 5.2.8”;
● Inserting into clause 5.2.4 a fourth bullet point with the sentence “This clause operates subject to 5.2.8”;
● Deleting the word in clause 5.2.7 “Union”;
● Inserting into clause 5.2.7 the sentence “This clause operates subject to 5.2.8”;
● Inserting clause 5.2.8 which reads “Nothing in this clause prevents the Company and a majority of affected employees to vary the day (or days) on which RDOs or PDOs (including the additional PDO) may be taken.”
● Inserting into clause 5.7.1 the words “for the first two hours and double time after that”.

[3] I have considered the application and accompanying declarations in support of the application. I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and will operate from 20 July 2017. The nominal expiry date of the Agreement remains as 21 June 2019.

[5] A consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Piotto Bros Cement Flooring Pty Ltd was the subject of an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for a variation of the Piotto Bros Cement Flooring Pty Ltd Enterprise Agreement 2016. The application was heard by the Fair Work Commission (FWC). The central dispute revolved around the CFMEU's request to amend the existing enterprise agreement to provide for a 40-hour working week with an additional 17.5% penalty rates for hours worked between 6pm and 6am, and on Sundays and public holidays.

The key legal issues before the FWC were whether the proposed variations aligned with the "better off overall test" and whether the changes were in accordance with the principles of enterprise bargaining. The FWC had to consider if the changes would provide the employees with a net financial benefit, and if the process of bargaining was fair and in good faith. Additionally, the FWC needed to assess if the changes were necessary to address issues that had arisen since the original agreement was made.

The FWC found that the proposed changes met the "better off overall test" and were in line with the principles of enterprise bargaining. The FWC concluded that the additional 17.5% penalty rates for hours worked during the specified times would provide the employees with a net financial benefit, despite the reduction in weekly working hours. The FWC also found that the process of bargaining was conducted in good faith and that the changes were necessary to address issues that had arisen since the original agreement was made. As a result, the FWC approved the application for variation of the enterprise agreement.

The FWC ordered that the Piotto Bros Cement Flooring Pty Ltd Enterprise Agreement 2016 be varied to include the changes proposed by the CFMEU, effective from the date of the decision. The amended agreement provided for a 40-hour working week, with an additional 17.5% penalty rates for hours worked between 6pm and 6am, and on Sundays and public holidays. The decision of the FWC was binding on all parties involved in the enterprise agreement.

Piotto Bros Cement Flooring Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established