Resources (NSW) Projects Pty Ltd

[2024] FWCA 3154

[2024] FWCA 3154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Resources (NSW) Projects Pty Ltd

(AG2024/2738)

RESOURCES (NSW) PROJECTS SNOWY HYDRO 2.0 PROJECT ENTERPRISE AGREEMENT 2024

Road transport industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 30 AUGUST 2024

Application for approval of the Resources (NSW) Projects Snowy Hydro 2.0 Project Enterprise Agreement 2024

Introduction

1. Resources (NSW) Projects Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Resources (NSW) Projects Snowy Hydro 2.0 Project Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Relevant Modern Award

1. The Employer provided written submissions that at the time the Agreement was drafted, the scope of work to be performed by the covered employees was unclear. On this basis, clause 5 of the Agreement refers to both the Road Transport and Distribution Award 2020 and the Building and Construction General On-site Award 2020.

1. The Employer further submitted that no work of the kind covered by the Building and Construction General On-site Award 2020 will be performed by employees employed under the Agreement and this Award should not be considered in the Commission’s analysis.

1. Based on the submissions provided, I am satisfied that the Road Transport and Distribution Award 2020 is the only relevant Award to be considered in deciding whether to approve the Agreement.

Shiftworker Definition

1. The definition of shift work in Clause 3 of the Agreement appears more restrictive than the Award and does not appear to comply with s.196 of the Act.

1. The Employer has provided written undertakings addressing this issue by amending the definition of shift worker. A copy of the undertakings is attached as Schedule D. Based on these undertakings, I am satisfied that the requirements of s.196 of the Act have been met.

National Employment Standards

1. Clause 17, which deals with compassionate leave, may be inconsistent with the National Employment Standards (NES) as it is silent on circumstances where a child is stillborn, or the employee, or the employee's spouse or de facto partner, has a miscarriage in accordance with s.104 of the Act.

1. Additionally, Clause 26.5 may permit the Employer to withhold monies owing to the employee under the NES, which would be inconsistent with the NES.   

1. Furthermore, Clause 27 appears to provide that employees who are deemed to have abandoned their employment will not be given their minimum notice of termination entitlement pursuant to s.117(3) of the Act.

1. I note that in accordance with the NES precedence term in Clause 5(e) and as amended by the undertakings, these clauses will be read and interpreted in conjunction with the NES.

Better Off Overall Test

1. Clauses 13.2(d)–(f) do not provide minimum hours of pay for part-time employees. Under Clause 10.7 of the Award, employees are entitled to a minimum of 4 hours of pay. Additionally, the Agreement is silent on minimum hours of pay for Saturday and Sunday work. Clause 23.1(c) of the Award requires employees be paid a minimum of 3 hours and 4 hours for work done on a Saturday and Sunday, respectively. Thus, employees may be worse off under the Agreement than if they were employed under the Award

1. Clause 13.2(a) provides that part-time employees may be required to work overtime as requested or approved by their supervisor but does not appear to specifically provide that all time worked in excess of the employee’s usual hours of work will be paid at the appropriate overtime rate, as provided by Clause 10.8 of the Award.

1. Clause 13.2(f) of the Agreement also provides that part-time work arrangements may be varied by the employer in accordance with operational requirements. This is less favourable than Clause 10.3 of the Award, which states that work arrangements may be varied by consent.

1. I am satisfied that the issues identified above are satisfactorily resolved by the undertakings provided by the Employer, attached as Schedule D.

1. Clause 12.1 of the Agreement states that employees may opt into a Loaded Rates system, under which they would not receive award entitlements. There is also no effective reconciliation term in the Agreement, which may leave employees without protections.[1] Additionally, casual employees do not appear to be excluded from receiving loaded rates, which may prevent them from being better off overall than under the Award.[2]

1. I am satisfied from the undertakings provided by the Employer that casual employees are excluded from being paid loaded rates.

Delegates’ Rights Term

1. The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Road Transport and Distribution Award 2020 is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Schedule E.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Schedule D. 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.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2024. The nominal expiry date of the Agreement is 6 September 2027.

DEPUTY PRESIDENT

[1] Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery

[2017] FWCFB 1664.

[2] Loaded Rates Agreements [2018] FWCFB 3610.

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