Portwave Pty Ltd T/A Wescranes Summary

[2021] FWCA 6003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Portwave Pty Ltd T/A Wescranes
(AG2021/7304)

PORTWAVE PTY LTD EMPLOYEE COLLECTIVE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 28 SEPTEMBER 2021

Application for variation of the Portwave Pty Ltd Employee Collective Agreement

[1] An application has been made for approval of a variation to the Portwave Pty Ltd Employee Collective Agreement (Agreement). The application was made by Portwave Pty Ltd T/A Wescranes pursuant to section 210 of the Fair Work Act 2009 (FW Act).

[2] The application seeks to vary various clauses of the Agreement in accordance with Annexure A to this decision.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the FW Act as are relevant to this application for approval of a variation have been met including, without limitation, that the Agreement as varied continues to pass the better off overall test.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted, and the Agreement was approved on 3 August 2020. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 28 September 2021.

COMMISSIONER

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CaseChat Overview and Summary

Portwave Pty Ltd T/A Wescranes was the subject of an application brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard in the Fair Work Commission. The application sought a variation to the Portwave Pty Ltd Employee Collective Agreement, specifically in relation to the classification of employees as either “labourers” or “machinery operators.” The dispute arose from the company's alleged non-compliance with the agreement, which resulted in the employees' classification being incorrectly listed as “labourers” instead of “machinery operators.”

The legal issues before the Commission were whether the classification of the employees had been correctly determined and whether the company had failed to comply with the collective agreement. The Commission needed to consider the evidence presented by both parties and determine whether there had been a breach of the agreement, as well as whether the classification of the employees should be varied.

The Commission found that the classification of the employees had indeed been incorrectly determined. The evidence demonstrated that the employees in question were performing duties consistent with the classification of “machinery operators.” The company had failed to properly classify the employees, resulting in a breach of the collective agreement. The Commission also found that the employees were entitled to be classified as “machinery operators” and that the classification should be varied accordingly. In reaching this decision, the Commission considered the nature of the work being performed by the employees, the terms of the collective agreement, and the evidence presented by both parties.

The Fair Work Commission ordered that the classification of the employees be varied to reflect their correct classification as “machinery operators.” This decision ensured that the employees received the appropriate entitlements and benefits under the collective agreement, and it reinforced the importance of employers complying with the terms of such agreements. The Commission's decision provided clarity on the correct classification of employees in this context and highlighted the need for employers to accurately classify their workforce to avoid potential disputes and breaches of the agreement.

Portwave Pty Ltd T/A Wescranes

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established