RCQ Projects Pty Ltd

[2021] FWCA 3583

[2021] FWCA 3583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RCQ Projects Pty Ltd
(AG2021/4432)

RCQ PROJECTS PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 21 JUNE 2021

Application for approval of the RCQ Projects Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an agreement known as the RCQ Projects Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made by RCQ Projects Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] On 7 April 2021 the CFMMEU wrote to the Agreements Team requesting copies of documentation and indicated it had a material interest in the application. On 8 April 2021, the Member Assist Team forwarded redacted copies of the documents to the CFMMEU and advised that the file had been allocated to my Chambers and it brought to the CFMMEU’s attention that it is noted that it is not a bargaining representative and should it wish to be heard, it should notify the Member and establish its status.

[3] On 12 April 2021, the Commission wrote to the Applicant identifying three matters requiring further information and informed them that the CFMMEU had indicated that it wished to be heard and therefore the matter would be listed for directions.

[4] The matter was listed for mention on 15 April 2021 but cancelled due to the CFMMEU being unavailable. The Applicant forwarded the additional information requested by the Commission.

[5] Following a request from the CFMEU for a relisting, the matter was rescheduled to 16 April 2021. Following the hearing, further directions were issued including the modelling conducted by the Commission to both of the parties.

[6] The CFMMEU after consideration of the Form F16 and F17 together with the Agreement requested to be heard regarding their objection to the approval of the Agreement. While not a bargaining representative, the CFMMEU indicated that the Commission would benefit from a contradictor in light of its extensive representation of workers covered by the Award and requested that the Commission grant it authority to be heard pursuant to s.590 of the Act. The CFMMEU also submits that it would be a “person aggrieved” by any decision to approve the Agreement for the purposes of s.604 of the Act. The CFMMEU indicated that the Agreement contained less favourable terms than the Award which is relevant to the assessment of the BOOT.

[7] The CFMMEU were granted the opportunity to file submissions pursuant to s.590 of the Act. The Applicant was represented by the Master Builders Association. This matter has been determined on the papers having taken into consideration the submissions of the parties and following the Commission’s own assessment and analysis.

[8] The CFMMEU submits that it noted that the Applicant recognised that the Building and Construction General On-site Award 2020 (the Award) is applicable for the purpose of the BOOT. Its analysis found that the Agreement contained a number of less beneficial terms or Award terms omitted entirely when compared to the Award, however, the form F17 indicates that the Agreement contains no terms that are less beneficial.

[9] Further the CFMMEU notes that the Agreement contains loaded rates, and it contends that as a result the Agreement should be closely analysed to weigh comparative advantages and disadvantages of both monetary and non-monetary benefits.

[10] The CFMMEU listed the following terms of the Agreement, albeit not an exhaustive list, that it contends falls short of the Award:

a. 6.1.3 - A probation period of 6 months
b. 6.6 - A standdown clause that differs from the Award provision
c. 10.1.5 - The additional fare allowance per km travelled by an employee beyond a 50km radius is payable where nominated by the employer
d. 10.2 – The living away from home (LAFH) allowance is payable at the discretion of the employer
e. 14.3.2 - The meal breaks are subject to approval by the employer
f. 15.1 – There is no entitlement to leave loading
g. 15.3.6 – a medical certificate is required after each absence rather than after 2 days
h. 17.3 – While using a company vehicle the employee has the obligation to fuel the vehicle
i. Appendix 1 – The Agreement fails to state the rate of pay after noon on a Saturday if 45 hours had not been worked. 1

[11] The CFMMEU contends that the Commission’s modelling based on a 60-hour week shows a benefit under the Agreement by 0.15%, however, with the less beneficial clauses as outlined above, it contends that employees under the Agreement are not better off overall.

[12] In response to the submissions of the CFMEU, the Applicant submits:

a. Clause 6.8 Stand down – The clause is not inconsistent with the Act and rather than placing any burden on an employee, it entitles an employee to access the dispute settlement clause in relation to any proposed stand down
b. 10.2 LAFH Allowance – it is contended that the clause provides the same provisions as the Award
c. 15.1 Annual leave – It is contended that the rates are sufficiently loaded to cover annual leave loading
d. 15.3.6 - In relation to medical certificates, the Applicant disputes the CFMMEU’s conclusion
e. 17.3 – The clause does not require an employee to be personally responsible for payment of fuel
f. 6.1.3 probation – it is contended that the CFMMEU has not identified any less beneficial impact on the employee by having a probation period in the Agreement. It further contends that such clauses normally are supported by the CFMMEU as they provide the benefit of access to the dispute settlement procedure
g. 10.1.5 additional travel allowance – the Applicant concedes that the provision is conditional on the employer nominating the employee for the allowance
h. Appendix 1 rates of pay – The Applicant submits that the Agreement is clear that loaded rates apply until noon on a Saturday and overtime rates apply noon. However, it submits that should the Commission form the view that the Agreement is unclear in this regard it would be prepared to provide an undertaking to make it clear
i. The modelling conducted by the CFMMEU is flawed as it is based on a 60-hour week which is an unrealistic scenario. Despite this modelling, the CFMMEU has failed to demonstrate that an employee is worse off on the Agreement 2

[13] Following an assessment of the Agreement by the Commission it raised with the Applicant three matters for follow-up.

i. The Form F17 was not properly signed, and in satisfaction, the Applicant forwarded a revised form.
ii. Clause 15.4.1 of the Agreement suggests a majority of employees can agree to substitute a public holiday for another day. The Agreement contains an effective NES precedence clause which can be referred to in the decision, however, the Applicant provided an undertaking to address the matter. The undertaking is sufficient in respect to the concern raised.
iii. Clause 14 of the Agreement allows for the change to the spread of hours. The Applicant provided an undertaking which is satisfactory to address the concern raised.

[14] In relation to the concerns raised by the CFMMEU, the Commission conducted an analysis of the BOOT and it found that ordinary rates are between 17.04% to 24.85% above the Award, overtime rates are 8.10% to 49.69% above Award and public holiday rates 6.88% to 20.53% above Award. The Building and Construction General On-site Award 2010 is incorporated into the Agreement except for the casual conversion provision. Therefore, the analysis was conducted on the basis that the Award is incorporated. Modelling based on a 50-hour week shows that employees covered by the Agreement are better off overall compared to the Award. With the undertakings provided, the concerns of the Commission were addressed in relation to the spread of hours and substitution of public holidays.

[15] The CFMMEU raised a number of Agreement clauses that it says are less beneficial than the Award. In doing so, it has taken a line-by-line comparison rather than the global BOOT that requires consideration of the advantages and disadvantages of the Agreement.

[16] Clauses consistent with the provisions of the Act while not contained in the Award, have by virtue of their inclusion in the Agreement protections where relevant through consultation clauses and the dispute settlement procedure. I do not agree that such clauses disadvantage employees under the Agreement.

[17] In relation to the language concerning meal breaks, the CFMMEU takes issue with the reference to “subject to approval”, however this reference must be read together with the rest of the clause. The clause contains flexibilities for the taking of rest pauses, meal or paid crib breaks so as not to interfere with continuity of work and the clause also provides where approved by management an employee working through the lunch to enable employees to finish earlier.

[18] In order to address the CFMMEU’s concerns about the conditional nature of the meal break provisions, I invited the Applicant to provide an undertaking which ensures that the entitlement to a meal break is not conditional, save for where management approval is granted for an employee to work through lunch and finish earlier in accordance with clause 14.3.2 ii. On 21 June 2021, an undertaking was filed on behalf of the Applicant which removes the words ‘subject to approval of the Company’ from clause 14.3.2 of the Agreement. I am satisfied that this undertaking resolves any potential concerns which might arise in relation to whether employees are better off overall under the Agreement.

[19] I am satisfied that the loaded rate that includes leave loading is sufficient to meet the BOOT.

[20] I am not satisfied that the concerns raised by the CFMMEU concerning LAFH and Travel allowance are justified. The LAFH allowance provision in the Agreement provides the employer with the option of reimbursing the reasonable cost of board and/or lodging and any out-of-pocket expenses, or supply accommodation plus provide a meal allowance of $60 per day. The clause in the Agreement does not disadvantage employees. The CFMMEU raises a concern with the language in the Agreement suggesting that should employees work away from home the reimbursement or provision of accommodation is at the discretion of the employer. While that is not the intent of the Applicant an undertaking clarifying the clause was filed with my chambers on 21 June 2021 which confirms that clause 10.2.1 and 10.2.2 of the Agreement shall be read to provide entitlement to payment for accommodation and or meals in the same way as under clause 25.3 of the Award. I am satisfied that this undertaking resolves any potential concerns which might arise in relation to whether employees are better off overall under the Agreement.

[21] Clause 15.3.8 and 15.3.9 suggests the relevant documentary evidence for sick leave is a medical certificate or statutory declaration. The NES provides that sick leave is not an automatic right without evidence. The Award contains no additional provisions concerning evidence but simply refers to the NES. On this basis, the Agreement is not inconsistent with the NES. In the event there were any inconsistencies, the Agreement contains a NES precedence clause.

[22] Inclusion of the Company policy concerning the use of company vehicles does not contain what appears to be the CFMMEU concern that employees may be personally liable for the cost of replenishing fuel. It is not uncommon for employees in charge of company vehicles to refuel vehicles and the Applicant’s submissions confirm that the policy is to confirm obligations regarding maintenance of company vehicles and not the payment of fuel. I accept those submissions resolve the CFMMEU concerns.

[23] Having conducted an analysis of the Agreement, performed modelling and having considered the submissions of the parties together with the undertakings provided, I am satisfied that the Agreement passes the BOOT.

[24] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[25] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[26] The Agreement is approved and, in accordance with s.54, will operate from 28 June 2021. The nominal expiry date of the Agreement is 20 June 2025.

COMMISSIONER

Annexure A

 1 CFMMEU Further submissions at [7].

 2   Response to CFMMEU Submissions.

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