Retro Traffic Pty Ltd

[2018] FWCA 7383

[2018] FWCA 7383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Retro Traffic Pty Ltd
(AG2018/3590)

THE RETRO TRAFFIC ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 21 DECEMBER 2018

Application for approval of The Retro Traffic Enterprise Agreement 2018

[1] An application has been made for approval of an enterprise agreement known as The Retro Traffic Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 by Retro Traffic Pty Ltd (Retro Traffic). The Agreement is a single-enterprise agreement.

[2] The application was listed for hearing on 23 October and 4 December 2018 to deal with four outstanding issues, two of which have been subsequently dealt with by way of undertakings provided by Retro Traffic.

[3] At the hearing, Mr Sage appeared for the Australian Workers’ Union (AWU) and Mr Lyons appeared with permission for Retro Traffic.

[4] I note the extensive history to the approval of this Agreement, which is unnecessary to detail in this decision.

[5] I now turn to deal with the remaining issues.

NERR

[6] Section 173 of the Act requires that a Notice of Employee Representational Rights (NERR) be given to relevant employees who will be covered by the agreement and who are employed at the notification time for the agreement.

[7] An application was made on 15 May 2018 for the approval of an enterprise agreement, which was subsequently withdrawn as a result of Retro Traffic’s reliance on the Commission’s ‘access period’ calculator, meaning the agreement could not be approved.

[8] A further access period was commenced on 18 July 2018. In the period between 21 April and 18 July, some 23 employees commenced employment with Retro Traffic because of a transfer of business (the transferring employees).

[9] Retro Traffic re-issued the NERR on 3 July 2018 to all employees, including the transferring employees (the second NERR).

[10] The AWU raised a concern that the second NERR was inaccurate in its description of the employees to be covered by the Agreement as required by s174 of the Act, because it was also issued to the transferring employees. As a result, it argued, the agreement could not be approved.

[11] At the hearing on 4 December 2018, the AWU agreed that bargaining commenced on 19 April 2018. It was not challenged that the NERR was issued on 21 April 2018, within the ‘notification time’ required by s173(3) of the Act.

[12] Retro Traffic submitted that the NERR was properly issued on 21 April 2018, and the second NERR was unnecessary and was issued in error. The AWU confirmed that it accepted the submissions made on behalf of Retro Traffic with regard to the NERR and accordingly it did not intend to make any contrary submissions.

[13] I am satisfied that the requirements of the Act with respect to the issuing of the NERR were met, as it was issued within the notification time, and met the requirements of s174 at the time it was issued. This was not invalidated by the mistaken reissuing of the second NERR.

Overtime for shift workers

[14] The AWU raised a concern that the Agreement did not distinguish between shift work and day work for the purposes of overtime. It argued that “the provisions of the Agreement at clause 8.5 do not state that an employee will be paid overtime for any time worked outside of ordinary hours”. The AWU further argued that the undertaking provided to the Commission by Retro Traffic in this regard did not address its concern because the undertaking only increased the shift loading to time and one half for employees who work less than five afternoon or night shifts consecutively. It submitted that the undertaking only resolved the BOOT issue with respect to a comparison with clause 32.4 of the Building and Construction General On-site Award 2010 (the Award), but did not address its concern with regard to employees who were not engaged within a system of shift work as defined in the Award.

[15] Retro Traffic submitted that a number of enterprise agreements with the same or similar provisions had been approved by the Commission with the support of the AWU, and provided details of same.

[16] Retro Traffic argued that the Agreement did not provide for employees to be shift workers as contemplated by s196 of the Act, and in any event employees under the Agreement do not work continuous shift rosters as defined in the Award. As a result, it submitted, the AWU’s argument was incorrect.

[17] I am satisfied, based on the material before me, that the undertaking provided by Retro Traffic satisfactorily deals with the concern raised.

Rates of pay for minimum classification

[18] The AWU was concerned that the lowest classification in the Agreement (ie. Trainee Traffic Controller or TC1) should not be compared with the lowest classification in the Award (ie. CW1) for the purposes of the BOOT. It submitted that TC1 should align with CW2 of the Award, which meant that the rates of pay in the Agreement were below the Award for that classification.

[19] Retro Traffic submitted that the Agreement clearly identified the classification of Trainee Traffic Controller as “a new entrant and have completed less than 3 months’ continuous service with the employer as traffic controller learning to direct and control traffic”. It argued that the requirement for the employee to be a ‘new entrant’ and remain in the role for no more than 3 months duration mirrored the description of the CW1 classification of the Award. During the hearing Mr Lyon confirmed that employees in the TC1 classification would be fully supervised and employed in this classification for no more than 3 months.

[20] I find that the classification of Trainee Traffic Controller properly aligns with the lowest classification in the Award, given the clear language in the definitions found respectively in the Award and Agreement.

Other matters

[21] The written undertakings provided by Retro Traffic is attached to this decision 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.

[22] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[23] The AWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[24] The Agreement is approved. In accordance with s.54(1) it will operate from 28 December 2018. The nominal expiry date of the Agreement is 20 December 2022.

DEPUTY PRESIDENT

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Annexure A