Professional Traffic Solutions Pty Ltd
[2018] FWC 1007
•21 FEBRUARY 2018
| [2018] FWC 1007 |
| FAIR WORK COMMISSION |
| InTERIM DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Professional Traffic Solutions Pty Ltd
(AG2017/2243)
| COMMISSIONER GREGORY | MELBOURNE, 21 FEBRUARY 2018 |
Application for approval of the Professional Traffic Solutions Pty Ltd Enterprise Agreement 2017.
Introduction
An application has been made for approval of an Enterprise Agreement known as the Professional Traffic Solutions Pty Ltd Enterprise Agreement 2017 (“the Agreement”). It is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Professional Traffic Solutions Pty Ltd (“PTS”). It is a single enterprise agreement. PTS is involved in the traffic control industry.
The application indicates that there were no Union or employee bargaining representatives involved in the agreement making process. The F17 Employer’s Statutory Declaration also indicates that the Agreement is intended to cover 12 employees who each voted to approve the Agreement. They are all employed on a casual basis. It also indicates that the Agreement contains some more beneficial provisions compared to the underlying Building and Construction General On-Site Award 2010[1] (“the Award”) and there are no less beneficial provisions, and it therefore satisfies the requirements of the “better off overall” test.
However, the Commission was subsequently advised by a representative from the Traffic Management Association of Australia (“TMAA”) that it objected to approval of the Agreement. It provided further correspondence at the time which detailed its grounds of objection. These are based primarily on satisfaction with the requirements of the “better off overall”[2] test, but also makes reference to some “Other matters of concern.”[3] The Commission was also advised on the same day that the Australian Workers’ Union (“AWU”) objected to approval as the Agreement does not pass the “better off overall” test.
PTS then then responded by foreshadowing some proposed undertakings it would be prepared to provide, but also sought further time to respond to the matters raised by the TMAA and the AWU. The application was accordingly set down for hearing on 22 September 2017.
Mr D. Murray from the Australian Industry Group appeared on behalf of PTS. Mr D. Lyons appeared on behalf of the TMAA. Mr G. Symington and Mr T. Callinan appeared on behalf of the AWU.
PTS indicated at the outset that the TMAA and the AWU were not bargaining representatives for the Agreement and, while the Commission has a discretion under s.590 of the Act to inform itself in the manner it believes appropriate, it was for both organisations to persuade the Commission they were entitled to be heard. It also confirmed that some undertakings had already been proposed, but further undertakings could be considered if the Commission had other concerns that needed to be addressed.
The AWU confirmed that it was not a bargaining representative for the Agreement, and does not have members employed by PTS. However, it has a substantial number of members employed in traffic control work, and it is eligible to enrol and represent employees involved in this work. It also submits it has extensive knowledge about the conditions that apply in the industry, and should be heard on the basis of these considerations.
The TMAA is a registered organisation of employers with an obvious interest in the traffic management industry, and accordingly submits it is appropriate for it to be heard as well.
However, it was then discovered that the written submissions prepared by PTS had inadvertently has not been provided to the other organisations. It was accordingly decided that the proceedings be adjourned until 28 September 2017 so that copies could be provided to both the TMAA and the AWU, with an appropriate opportunity then being available for them to respond.
The Evidence and Submissions
Traffic Management Association of Australia
The TMAA submits that the Agreement fails to pass the “better off overall” test and makes reference to what it claims are a “vast number of provisions”[4] in the Agreement which contain less beneficial terms than those in the underlying Building and Construction General On-Site Award 2010. It referred in this context to the following matters:
· Clause 10 Employment Category – there is no provision for casual conversion. The clause also provides for an additional amount to be provided to casual employees, without stating what that amount is, whereas the Award provides specifically for a 25% casual loading.
· Clause 14.2 – this sub clause, which provides that “employees will only be paid for actual hours worked,”[5] is in conflict with sub clause 10.1(c) in the Agreement which states, “A casual employee will receive a minimum of four (4) hours payment for each engagement.”[6]
· The Agreement contains no provision in regard to inclement weather, as provided for in clause 23 of the Award.
· Sub clause 14.4 of the Agreement provides for averaging of hours over a period of 26 weeks, but there is no corresponding provision in the Award. This could have a significant impact on the ability of employees to be entitled to payment of overtime.
· The Agreement in sub clause 16.1 provides for a day shift span of hours from 4 a.m. until 1.45 p.m., whereas the corresponding span in the Award is from 7 a.m. until 6 p.m., with hours outside of that spread being paid at overtime rates.
· The afternoon and night shift provisions in sub clause 16.1 of the Agreement are also different to those in the Award.
· The Agreement does not replicate the payments in clause 34.2 of the Award when less than 5 consecutive afternoon or night shifts are worked.
· The Agreement does not provide for overtime in excess of ordinary hours to be paid at double time when shift work is rostered.
· There is some confusion in terms of the provisions in clauses 15 and 16 of the Agreement, and it appears that, in certain circumstances, employees will not be entitled to overtime payments that would apply under the Award.
· The dispute resolution provisions in the Agreement are different from those in the Award and appear to deprive employees of both mediation and consent arbitration options.
· Sub clause 14.2 appears to indicate all rest breaks are unpaid.
· There is no meal allowance provided for when overtime is worked, as provided for in clause 20.2 of the Award.
· The Agreement does not appear to provide for all of the allowances in the Award.
· The Award rate as at 1 July 2017 for a casual CW2 – Traffic Controller is $27.10 per hour, whereas in the Agreement the rate is $26.00.
The TMAA also notes that the Agreement only provides for two annual wage increases over its intended life of 4 years. Clause 13.5 also provides the employer with a broad discretion to deduct monies from an employee. The pagination of the Agreement also appears to indicate that some pages are missing.
The AWU
The AWU also submits that the Agreement does not pass the “better off overall” test. It makes reference to the following matters in this context:
· Firstly, it also refers to the averaging provisions which enable hours to be averaged over 26 weeks, and submits this “is a significant disadvantage”[7] compared to the averaging arrangements at clause 33.1 in the Award. In its submission, the Agreement could also allow PTS to engage employees for up to 40 hours per week before overtime entitlements apply
· It next submits that because night work would not normally be performed as part of a continuous operation, it is work performed outside the span of ordinary hours, and therefore to be paid at overtime rates. However, even if the employees are considered to be shift workers, they would be worse off under the Agreement because of the provisions in the Award that provide for a night shift that continues for less than 5 consecutive shifts to be paid at the rate of time and a half. It also submits that work that would be paid at overtime rates under the Award could instead be paid at the shift penalty rates of 25% and 50% under the Agreement. It refers in this context to sub clause 34.2(a) in the Award, and submits that before it can apply an employee must first be engaged on shift work, as defined by the sub clause, before then moving to determine what the employee is entitled to be paid. It is not possible, for example, for a person to be engaged on shift work for a single day – they should instead be paid at overtime rates in those circumstances.
· The Agreement does not include a number of the travel entitlements in the Award in sub clauses 25.1, 24.8 and 25.5(b)(ii).
· Sub clauses 36.2 & 3 propose to allow for contracting out when employees work in a distant location. However, there are specific entitlements that apply under the Award in such circumstances. In its submission the option of being able to nominate another depot as being the closest location to home in order to obtain additional work simply represents a shifting of the costs of these arrangements to the employee, and potentially exposes them to health and safety issues associated with fatigue and sub-standard accommodation.
· Sub clause 35.2 appears to make no provision for the Easter Saturday or Easter Sunday public holidays.
· There are also other Award entitlements that are not included in the Agreement, including those dealing with casual conversion, the meal and other allowance entitlements, payment for inadequate breaks between shifts, and the inclement weather provisions.
Professional Traffic Solutions
PTS provided the following written and oral submissions in response to the matters raised by the TMAA and the AWU.
· Averaging of ordinary hours – PTS acknowledges that hours can be averaged over a period of 26 weeks, but these arrangements are subject to sub clause 14.1, which provides that any averaging arrangement are subject to the ordinary hours being no more than 8 per day, Monday – Friday. It also rejects the suggestion that the working hours in the Agreement are not based around a 38 hour week. It submits instead that the terms in the Agreement are entirely consistent with those in the Award. It also notes that it does not intend to base its rosters on an RDO system as these arrangements are not relevant to its casual workforce.
· Night work – PTS submits that the shift work provisions in the Award do not require there be continuous shifts. It submits instead that the relevant provisions in clause 34.2(a) intend that shift work is a system of work where employees are working over a period of at least five successive days. It also proposes an undertaking to bring the shift times in line with those in the Award for employees working in the civil construction sector. It also proposes a further undertaking for those employees working an afternoon shift, which extends for less than five days, on the basis that they would be paid at the applicable night shift rate. It also submits that the Award does provide for permanent night shift work, but does not require that this can only be worked by way of a 24 hour/7 day per week continuous shift arrangement. It is also prepared to provide an undertaking, if necessary, to more specifically define afternoon and night shifts. It also proposes an undertaking to do with notification when fewer than five shifts are worked, and the higher rates that would apply on such occasions. However, where there is ongoing night shift work that extends for five or more shifts then it submits that the shift loadings and not the overtime rates apply.
· Travel entitlements – PTS denies that the travel entitlements under the Award are not provided for under the Agreement, however, it also proposes separate undertakings in response.
· Distant work – PTS again denies these entitlements are different from those in the Award. However, it gives employees the option of obtaining additional work by nominating more than one depot as their home depot. However, they are under no obligation to take up this opportunity and, when directed to perform distant work, will be paid excess travel and living away from home entitlements. This option is not intended to enable employees to contract out of entitlements or obligations that would otherwise apply to them. It is instead intended to open up other possible work opportunities in a business that operates from various regional depots.
· Public holidays – sub clause 35.2 makes clear that employees would be entitled to the Easter Saturday and Easter Sunday public holidays.
· Other Award entitlements not included –
- Casual conversion – PTS acknowledges that the Agreement does not provide for casual conversion. This is because the nature of its business is based around fluctuating casual engagements and permanent employment is not a practical option. In any case, casual conversion could only operate to convert employees to daily hire, which would not provide additional employment security. In addition, casual employees are entitled to long service leave benefits in accordance with the industry fund.
- Meal allowance – it is acknowledged that this entitlement is not included in the Agreement, but it is offset by other benefits. However, PTS is prepared to provide an undertaking that the meal allowance will be paid in a manner that reflects the Award conditions.
- First-aid and other allowances – PTS does not require any employee to have first-aid qualifications and therefore this allowance does not apply. Other special rates or disability allowances under the Award are also not applicable to its employees, and it provides for adverse conditions and special allowances.
- Payment for inadequate breaks between shifts – PTS does not employ employees in such circumstances.
- Inclement weather – these provisions do not apply to casual employees and PTS does not require employees to work in unsafe weather conditions.
· The objections by the TMAA – PTS rejects any suggestion by the TMAA that the Commission is required to have regard to the fact that approval of the Agreement might impact on the competitive position of its members. It submits that this is of no relevance. It also rejects any assertion that the terms of the proposed Agreement were not explained to employees during the access period. It also notes that some of the other objections raised by the TMAA have already been dealt with in the responses provided to objections raised by the AWU.
- Minimum engagement – PTS is prepared to provide an undertaking that employees will be paid for a minimum of four hours for each engagement.
- Overtime for shift workers – PTS proposes an undertaking to the effect that, where an employee on afternoon or night shift works overtime, such overtime shall be paid at double the ordinary time rate.
- Dispute settlement clause – an undertaking has already been proposed in response to a request from the Commission.
- Meal breaks – PTS denies that clause 18 indicates that all rest breaks are unpaid. It only makes reference to meal breaks being unpaid.
- Casual CW2 wage rate – PTS submits that when the adverse conditions allowance and special allowance are added to the rate the total amount is greater than the rate in the Award.
- Other matters of concern – PTS acknowledges that only two wage increases are provided for during the life of the Agreement, but the “better off overall test” is to be applied at the test time, not at some possible future time. Sub clause 13.5 also deals with deductions which are properly authorised and/or reasonable.
Consideration
In dealing with the present application it is, firstly, necessary to consider whether the AWU and/or the TMAA should be heard, given the objections raised by PTS. However, it is also noted that while it did object to them being heard it has not sought to have this issue determined before the application to approve the Agreement is dealt with. It has also been prepared to supply copies of it written submissions to each of the organisation. It has also now provided oral submissions in reply to the objections raised by both organisations.
Previous decisions of the Commission have considered the circumstances in which organisations that are not bargaining representatives might have the right to be heard in an application under s.185. I don’t go to those decisions in detail at this point. However, it has been established that whether an organisation, that is not a bargaining representative, has a right to be heard will depend upon the circumstances in each case, given that s.590 does enable the Commission to inform itself in relation to any matter as it considers appropriate.
It is also acknowledged that the framework of enterprise bargaining currently contained within the Act is intended to be based upon outcomes determined in individual workplaces by the direct parties, and their nominated representatives, through processes of bargaining and negotiation.
However, I am satisfied based on the involvement of both organisations in the road traffic management industry, and their involvement already in the proceedings, that they should both be provided with the opportunity to be heard in regard to the application on the basis that it might assist the Commission in carrying out its statutory responsibilities, particularly those concerned with the requirements of the “better off overall” test. I now turn to deal with the application and the relevant legislative provisions that must be considered in this context.
Section 186(1) of the Act requires the Commission, on application for approval of an enterprise agreement, to approve the agreement “if the requirements set out in this section and section 187 are met.”[8] Section 186(2), firstly, requires that the Commission must be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement,”[9] and, secondly, that “the agreement passes the better off overall test.”[10]
Section 188 of the Act then deals with when employees can be said to have genuinely agreed to an enterprise agreement. It states:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”[11]
As indicated, s.186(2)(d) requires that the Commission must be satisfied that the Agreement passes the “better off overall test.” The requirements of the test are dealt with in s.193(1) in the following terms:
“193 Passing the better off overall test
When a non greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”[12]
Section 193(6) also provides that the “test time” is the time the application for approval is made under s.185.
It is also clear that the application of the “better off overall test” involves a global comparison. In Armacell Australia Pty Ltd[13] a Full Bench of Fair Work Australia relevantly stated that:
“[41] The BOOT, as the name implies, requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”[14]
The Full Bench in Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo[15] also made clear that the assessment must be carried out in a way that ensures each employee, and each prospective employee, would be “better off overall” under the Agreement. It is not sufficient for the Commission to simply be satisfied that a majority of the employees would be better off. The Full Bench made this clear in the following terms:
“However the application of the BOOT requires satisfaction, as at the test time, that each Award covered employee and each prospective employee would be better off overall under the Agreement.”[16]
The Commission is now required to determine whether the relevant statutory requirements have been satisfied in the context of the present application.
It is clear at the outset that all of the employees to be covered by the proposed Agreement are to be engaged on a casual basis. The Commission’s assessment also indicates that at the time the application was filed the pay rates in the Agreement were 3.83% greater for the CW2 Traffic Controller classification than those contained in the underlying Building and Construction General On-Site Award 2010. I also note the submissions by PTS about the impact on the rates when the adverse conditions and special allowances are added to these rates as a “Combined Conditions Allowance.”
I turn, firstly, to deal with the issues associated with clause 14 “Ordinary Hours of Work”. The intent of the wording in sub clauses 14.1, 14.2 and 14.3 appears clear. The ordinary hours of work cannot exceed 38 per week, Monday – Friday, and are also not to exceed 8 per day. Sub clause 14.3 appears then to make clear that if more than 38 hours are worked in a week, Monday – Friday, or more than 8 hours are worked in a day, then overtime payments apply. However, this evident clarity of intent becomes less clear when sub clause 14.4 is considered. It provides, “Any averaging of hours will be over a period not exceeding 26 weeks.”[17]
There is no corresponding provision in the Award. Sub clause 33.1(a)(vii) does allow for the employer and the majority of employees at a particular enterprise to agree to an alternate method of arranging working hours, but still provides “that no more than eight ordinary hours are worked in any one day.”[18] The shift work provisions in clause 34, which apply to employees working in the civil construction sector, do allow for averaging but only “over a cycle of two, three or four weeks.”[19] PTS submits in response that hours can be averaged over a period of 26 weeks, but these arrangements are subject to clause 14.1, and the working arrangements in the Agreement are based around a 38 hour week. It continues to submit that these terms are consistent with those in the Award, although it does not intend to work an RDO system as this is not relevant given its casual workforce.
If this is the intention then I am satisfied that PTS might want to consider providing an undertaking to clarify this intention because there does seem to be a degree of confusion between the respective provisions. If clause 14 is intended to apply in the way PTS submits then it is difficult to understand what sub clause 14.4 is intended to do. It is suggested that any undertaking should make clear that in any circumstances when more than 38 hours are worked in a week, Monday – Friday, or more than 8 hours are worked in a day, then overtime entitlements apply. The other option might be for the undertaking to indicate that sub clause 14.4 no longer has any application.
The next issue concerns the conflicting submissions made about the shift work arrangements. In this context PTS has already provided an undertaking in regard to the hours of work that would apply in clause 16 “Shift Work.” It is as follows:
“Day Shift means any shift starting on or after 6.00 am and before 10.00 am
Afternoon Shift means any shift starting at or after 10.00 am and before 8.00 pm
Night Shift means any shift starting at or after 8.00 pm and before 6.00 am.”[20]
That definition is the same as in sub clause 34.2 of the Award for shift workers in the civil construction sector. PTS also submits that the shift work arrangements in the Agreement are intended to operate in a similar manner to those in the Award. It has also proposed a further undertaking in regard to appropriate shift definitions. I accordingly propose to defer any further consideration of this matter pending receipt of any further undertakings PTS might wish to have the Commission consider.
Casual conversion – PTS submits in response to the claims that the Agreement does not provide for casual conversion that the nature of the work to be performed by the employees to be covered by the Agreement is based around fluctuating business requirements, and permanent employment is not a practical option in these circumstances. All of the employees to be covered by the Agreement are therefore to be employed on a casual basis. PTS also submits that they are entitled to long service leave benefits under the terms of the industry fund that applies in the building industry.
I am also aware that previous Commission decisions have considered whether an enterprise agreement is required to include casual conversion entitlements and, in some cases, Agreements have been approved without these entitlements being retained. As the decision of Commissioner Roe in Re Mk2 Recruitment Pty Ltd[21] stated at [14]:
“The substitution of non-monetary entitlements for monetary entitlements is often a difficult matter to judge. Casual conversion offers employees the opportunity for job security and access to paid leave. Employees may value these matters differently. There will be differential issues for employees. For example, those with disability or with particular family circumstances will be likely to gain greater benefit from increased job security and access to paid leave. For the purpose of the BOOT it may not be appropriate to see all casual employees as a single class in this particular circumstance.”[22]
The process of enterprise bargaining is intended to be about putting in place working arrangements and work conditions that are best suited to the needs of the business and its employees. It would fly in the face of this objective if parties were obliged to engage employees in a manner that was not suited to the particular needs of the business. This is not by any means to suggest that casual conversion entitlements can or should be regularly excluded from an enterprise agreement. However, given the nature of the Applicant’s business operation, and the fact that the Agreement does provide for pay rates that are in excess of those contained in the Award, I am satisfied that the exclusion of the casual conversion entitlements does not act to prevent the Agreement from being approved.
Minimum engagement – this has been raised as an issue even though sub clause 14.1(c) of the Agreement makes clear casual employees “will receive a minimum of four (4) hours payment for each engagement.”[23] However, it is also noted that sub clause 14.2 curiously provides that, “Employees will only be paid for actual hours worked.”[24] PTS has proposed an undertaking in response. I am prepared to consider the terms of any undertaking it wishes to provide. It would appear that it should make clear that sub clause 10.1.(c) has application regardless of any other terms in the Agreement, or in some other way deal with the wording contained in sub clause 14.2.
The AWU has also raised a concern about the provisions in sub clause 36.3. It enables an employee to indicate that he/she is prepared to accept work out of the depot where the living away from home allowance would normally be paid if the employee was directed to work at or from that location. Where an employee chooses to accept work in this way the employer is no longer required to pay the living away from home allowance that otherwise applies.
The AWU submits in response that this shifts the travel/accommodation costs onto the employee and creates the potential for health and safety issues to emerge by encouraging excessive travel or by encouraging employees to accept inferior accommodation arrangements.
PTS submits in response that it operates out of five separate regional locations or depots, and the sub clause is intended to give employees the option of obtaining additional casual shifts, which might not otherwise be available, thereby providing additional work opportunities and additional income.
I understand these submissions. However, I also have some concerns about what is being proposed. The provisions can also be viewed in a similar way to the so-called “preferred hours clauses” that have been sought to be included in Agreements in the past, whereby an employee can elect to work additional hours but will only be paid at the ordinary time rather than overtime rates for such work. The trade-off is again about additional work opportunities for the employees but lower rates of pay when the work is performed. As previous decisions have noted the difficulty with such provisions is that they rely on the subjective views of the employees in regard to what provides the greater benefit, rather than an objective assessment process whereby the Award conditions are assessed against the terms in the Agreement.
I am not satisfied, in conclusion, that it is appropriate to approve the Agreement while it contains this sub clause. Firstly, there are not sufficient other benefits in the Agreement to offset the potential disadvantage that stems from this sub clause. Secondly, I am concerned about the potential implications that might result from the application of a clause of this kind. It clearly could have the effect of encouraging employees to elect to travel further distances to work than they might otherwise, and also cause them to spend more time away from home than they would normally do. These outcomes could contribute to health and safety concerns associated with fatigue and other related factors. In short, I am not satisfied that the Agreement should be approved while it contains this clause. However, PTS should now be given the opportunity to consider whether it wishes to propose an undertaking in response. Any such undertaking might, for example, make clear that while the Agreement is in operation PTS will not seek to rely on sub clause 36.3.
As indicated, PTS has proposed in its submissions that further additional undertakings can be provided in response to issues that have been raised in the proceedings. I am satisfied, in conclusion, that this is the appropriate next step, and that these undertaking should now be provided in a consolidated document to enable the Commission to then give further consideration to them. It will of course be necessary, as part of this exercise, to have regard to s.191 of the Act, which provides in part that the Commission can only accept a written undertaking from an employer covered by an agreement if it is satisfied that it is not likely to “result in substantial changes to the agreement.”[25] It would assist if the proposed undertakings can be provided within 14 days of the date of this decision
COMMISSIONER
Appearances:
D Murray for the Applicant.
G Symington and T Callinan for the Australian Workers’ Union.
D Lyons for the Traffic Management Association of Australia.
Hearing details:
2017.
Melbourne (by telephone):
September 22.
[1] MA000020.
[2] Fair Work Act 2009 (Cth) s 193.
[3] Submissions of the Traffic Management Association of Australia, dated 21 June 2017, [3].
[4] Ibid.
[5] Proposed Professional Traffic Solutions Pty Ltd Enterprise Agreement 2017, cl 14.2.
[6] Ibid, cl 10.1(c).
[7] Submissions of the Australian Workers’ Union, dated 21 June 2017, [1].
[8] Fair Work Act 2009 (Cth) s 186(1).
[9] Fair Work Act 2009 (Cth) s 186(2)(a).
[10] Fair Work Act 2009 (Cth) s 186(2)(b).
[11] Fair Work Act 2009 (Cth) s 188.
[12] Fair Work Act 2009 (Cth) s 193.
[13] Re Armacell Australia Pty Ltd; Wilmaridge Pty Ltd as Trustee for the O’Neill Family Trust t/a Direct Paper Supplies; Downer EDI Works Pty Ltd [2010] FWAFB 9985.
[14] Ibid, [41].
[15] [2016] FWCFB 2887.
[16] Ibid at [15].
[17] Proposed Professional Traffic Solutions Pty Ltd Enterprise Agreement 2017, cl 14.4.
[18] Building and Construction General On-Site Award 2010, cl 33.1(a)(vii).
[19] Ibid, cl 34.2(c)(i).
[20] Undertakings received from Applicant, dated 7 July 2017, [3].
[21] [2015] FWC 6600.
[22] Re Mk2 Recruitment Pty Ltd[2015] FWC 6600, [14].
[23] Proposed Professional Traffic Solutions Pty Ltd Enterprise Agreement 2017, cl 14.1(c).
[24] Ibid, cl 14.2.
[25] Fair Work Act 2009 (Cth) s 19093)(b).
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