RM Surveys Pty Ltd

[2019] FWCA 8214

[2019] FWCA 8214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RM Surveys Pty Ltd
(AG2019/4267)

RM SURVEYS PTY LTD ENTERPRISE AGREEMENT 2019

Technical services
COMMISSIONER PLATT	ADELAIDE, 4 DECEMBER 2019

Application for approval of the RM Surveys Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the RM Surveys Pty Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by RM Surveys Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 13 November 2019.

[3] On 22 November 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 8 November 2019.

[5] In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that it had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[6] The Applicant has submitted an undertaking in the required form dated 27 November 2019. The undertaking deals with the following topics:

•  A part-time employee is engaged to regularly work less hours than a full-time employee with specified days and hours being agreed in writing upon commencement of engagement. The specified days or hours cannot be altered without mutual agreement between the employer and employee and any variation must be recorded in writing. For hours worked outside ordinary hours of work, a part-time employee will be paid time and a half for the first three hours and double time thereafter. The first 5 hours of work performed on a Saturday will be paid at time and a half and double time thereafter. Sunday and public holiday loadings, in accordance with clauses 10.4 and 17 of the Agreement, will apply to part-time employees.

•  Casual employees who work outside ordinary hours will be paid at a rate of time and a half for the first three hours and double time thereafter. Sunday and public holiday loadings, in accordance with clauses 10.4 and 17 of the Agreement, will apply to casual employees.

•  Employees can request flexible working arrangements which will be considered and responded to in accordance with the Act and clause 23A of the Surveying Award 2010.

•  The table in clause 6.1 is changed to the following:

•  An employee will be deemed to have abandoned their employment after 3 consecutive days of unauthorised absence, unless through exceptional circumstances they have been unable to communicate their absence to the employer. The employer will provide notice of termination to the employee in accordance with the National Employment Standards (NES).

•  Full-time employees who work in excess of 38 hours per week or 7.6 hours per day will be paid at the ordinary rate of pay. Full-time employees who work in excess of 45 hours per week or 10 hours per day will be paid at time and a quarter. Full-time employees who work in excess of 50 hours per week or 12 hours per day will be paid at time and a half. The first 5 hours of work performed by a full-time employee on a Saturday will be paid at time and a half and double time thereafter.

•  Work performed by an employee on a Sunday will be paid at double time and work performed on a public holiday will be paid at double time and a half.

[7] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 3 December 2023.

COMMISSIONER

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