RMA Civil Construction Pty Ltd

[2021] FWCA 3324

[2021] FWCA 3324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RMA Civil Construction Pty Ltd
(AG2021/247)

RMA GROUP ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 9 JUNE 2021

Application for approval of the RMA Group Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the RMA Group Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by RMA Civil Construction Pty Ltd. The Agreement is a single enterprise agreement.

[2] The CFMMEU obtained copies of the forms F16 and F17 and the Notice of Employee Representational Rights and subsequently lodged an objection to the approval of the Agreement.

[3] The CFMMEU oppose the approval of the agreement on the following grounds:

a. There are key omissions and inaccuracies in the Form F17 which indicates that the Applicant may not have complied with its obligations in explaining the terms of the enterprise agreement as required by s.180(5) of the Act; and

b. The Applicant failed to give or provide access to all incorporated material as required by s.180(2) of the Act.

[4] The CFMMEU is not a bargaining representative but sought to be heard pursuant to s.590 of the Act. RMA contends that notwithstanding the representation of CFMMEU and its standing elsewhere, due to its limited knowledge of the operation or the bargaining process it has limited validity to inform the Commission.

[5] The CFMMEU contends that the Commission would be assisted from hearing its submissions regarding whether the Agreement meets the statutory requirements for approval, particularly in the situation where there is no contradictor. Due to the wide discretionary power of s.590 of the Act, I allowed the CFMMEU to be heard. The parties were required to file written submissions and it was agreed to determine the matter on the papers. The submissions of the CFMMEU have been taken into consideration in arriving at this decision.

Objection on the ground of failure to explain terms and their effect

[6] The CFMMEU submit that section 12 of the Form F17 filed by the Applicant declares that the Agreement contains no terms or conditions of employment that are less beneficial than the equivalent in the Building and Construction General On-Site Award 2010 (the Award). The CFMMEU submit that this statement is incorrect.

[7] Further the CFMMEU notes that despite the Agreement containing a clause that incorporates the Award and where there is an entitlement that differs, the Agreement shall prevail to the extent of that difference, it submits that certain clauses in the Agreement do differ and objectively are less beneficial. In this regard, the CFMMEU refer to:

• Clause 8 (c) (iii) payment of penalty rates for overtime compared to the Award clause 30.1;
• Clause 8(a) the span of hours is in effect an increase by 2 hours in ordinary time;
• Clause 8(c)(v) provides for a meal allowance after 10 hours of work, while the Award provides for a meal allowance after 1.5 hours of overtime and further the allowance in the Agreement is a lesser rate than in the Award;
• Clause 7(d) provides a travel allowance where employees make their way to a work site 30km away, while the Award allowance is regardless of travel distance;
• Clause 6(c) relating to fitness for work provides for random drug and alcohol testing which is not provided by the Award and gives rise to potential proceedings for breach of the Agreement under s.50 of the Act; and
• Clause 8 (d) provides for the payment of double time where an employee had not had a 10-hour break between shifts, but it does not contain a clause that then entitles the employee to a 10-hour break.

[8] In addition to the above identified provisions, the CFMMEU submit that the Form F17 declares that the scope of the Agreement is limited to Victoria, yet it is a national Agreement and therefore raises the possible explanation given to employees.

[9] RMA submits that its reasonable steps to explain the terms of the Agreement and their effect consistent with s.180(5) of the Act were listed in item 22 of the Form F17. RMA submits the information was provided in language relevant to the enterprise and the employees including discussion about the differences in the Agreement with the Award.

[10] In relation to the CFMMEU’s alleged less beneficial terms, RMA submits that a number of the conditions are not inferior in practice because despite the drafting in the Agreement the condition is applied in the workplace as per the Award. RMA submits that the concerns raised by the CFMMEU can be addressed through undertakings. To address the CFMMEU concerns, RMA submitted undertakings for clauses 8(c) (iii), 8(d), 8(a), the overtime meal allowance in schedule B Wage Rates and to confirm that the Agreement applies in Victoria.

Objection on the ground that incorporated materials

[11] The CFMMEU submit that clause 6(c) of the Agreement requires compliance with fitness for work, drug use and alcohol consumption customer policies and this mandatory language requires the Applicant to have taken all reasonable steps to provide employees with a copy of the material incorporated by reference. It further contends that it is unlikely that the Applicant provided copies of the policies during the access period.

Submissions of the Applicant

[12] RMA submit the CFMMEU objection should be dismissed on the grounds that the objections are invalid or otherwise may be resolved through an undertaking. Further it submits that the employees had in hand the NERR, exercised their rights in regard to representation and voted by a significant majority for the Agreement. On this basis, RMA submit the decision of the employees should be respected. It also submits that the CFMMEU had no involvement in the bargaining process and its submissions are largely based on speculation.

Consideration

[13] In relation to the submissions of the CFMMEU that terms of the Agreement are less beneficial than the Award, I have considered the submissions of both the CFMMEU and RMA.

[14] In relation to the CFMMEU’s objection that the alleged deficiencies in the form F17 raise concern of whether RMA complied with the terms of s.180(5) of the Act, I am of the view that the omissions are minor and do not prevent the Agreement from being approved. Relevantly, the Full Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (One Key) stated:

‘Section 180(5) of the Act requires that all reasonable steps must be taken by the employer to explain the terms of the agreement and the effect of those terms. It is quite common for the Fair Work Commission to identify terms which it believes may disadvantage employees in circumstances where the employer has failed to identify these matter in the F17 Statutory Declaration and in the information provided to employees. In this case the employer failed to identify a number of matters which disadvantage employees. Where these matters are minor it does not necessarily mean that Section 180(5) has not been complied with. The requirement is about “reasonable steps”. Where the matters are more significant the Fair Work Commission might not be satisfied that Section 180(5) has been met and as a consequence the requirement for genuine agreement in Section 188 may not be met and this will prevent the Agreement being approved. In the circumstances of this case I am satisfied, on a fine balance, that reasonable steps were taken to explain the terms of the agreement and the effect of those terms.’ 1

[15] The Agreement incorporates the Award and in response to the CFMMEU submission that the drafting in the Agreement overrides the Award in provisions which it says are less beneficial, undertakings can be incorporated to avoid doubt that relevant Award provisions apply to the following clauses:

a. Clause 8 c iii - RMA submit the normal business commencing time for Saturday overtime work is 7.00am, which would result in all hours worked after 2 hours at 200%, including those worked after midday, to avoid doubt the undertaking confirms that all hours after midday will be paid at 200%. I accept this undertaking as it clarifies current working arrangements and addresses the wording in the Agreement where it can be construed as a potential for overtime hours to not be paid at 200% from midday.

b. Clause 8 a - RMA submit it provided a span of hours to accommodate the flexibility clauses contained in clause 6 e and 7. However, the normal hours of work commence from 7.00am Monday to Friday with an RDO system. Again, to avoid doubt regarding the intention of the ordinary hours, RMA provide an undertaking which I accept.

c. Clause 8 c v – RMA submit that an error occurred where the meal allowance rate was not updated following the minimum wage adjustment from 1 November 2020 immediately prior to the meeting of employees on 4 November 2020. While the rate does not affect the BOOT, I do accept the undertaking from RMA to update the allowance contained in Schedule B Wage Rates. Further the CFMMEU objection on the basis that the meal allowance applies after 1.5 hours of overtime while the Agreement states that the allowance applies after 10 hours of work, fails to take into consideration that employees work 8 hours with 0.4 of an hour credited towards an RDO, thereby the omission in my view being of minor significance.

d. Clause 8 d – The CFMMEU objection to the drafting of the Agreement clause relating to the requirement for 10 hours off duty after being required to commence work without a 10-hour break in my view is not significant. The Agreement provides for 10 hours between shifts and in any event the Award is incorporated. Despite this RMA provide an undertaking in satisfaction of the CFMMEU concerns which I accept, even though I do not consider it necessary.

[16] Clause 7 d of the Agreement provides a travel allowance greater than the Award where employees that are not provided with a company vehicle and travel more than 30 km. The Award provides a lesser travel allowance regardless of distance travelled to site. RMA is based in Geelong and it submits its work on site mostly requires travel more than 30 km to get to site. The majority of employees have a company vehicle and for those without a company vehicle may travel to the depot to be transported to site where less than 30 km is travelled. While this difference between the Agreement and the Award may be less beneficial in certain circumstances, the higher allowance together with the other benefits contained in the Agreement does not present a BOOT concern. I also do not accept that the difference is so significant to raise concerns that s.180 (5) had not been met. Employees had access to the Award and had coverage under the Award prior to the vote for the Agreement.

[17] Clause 6 c) relates to fitness for work, and specifically states that employees must be required to attend for work fit and ready, that use of alcohol or drugs on a worksite or during working hours in strictly forbidden, and that employees are required to undertake random drug or alcohol tests when required by RMA or where a customer’s policy requires it. The objection by the CFMMEU is that the Award does not provide such a provision, and should an employee not comply with the Agreement clause they may be subject to disciplinary action and potentially litigation pursuant to s.50 of the Act. The CFMMEU further contends that the clause incorporates customer policies which gives rise to a breach of s.180(2)(a) of the Act. The clause does not incorporate customer policies but makes clear that the direction to undertake an alcohol or drug test may be directed by either RMA or the customer should they have a policy that requires random tests to be undertaken. The clause is clear that RMA requires employees to be subject to random tests and it contains no further mandatory obligation to comply with any other conditions concerning customer policies. I do not accept that s.180(2)(a) is enlivened. In regard to the concerns relating to disciplinary action or possible breaches pursuant to s.50 of the Act, the potential for a breach of the term of an Agreement resulting in disciplinary action of subject to s. 50 of the Act is probable. However, the objection on the basis that the Agreement contains obligations regarding fitness for work is insufficient to dismiss the application.

[18] The CFMMEU further contend that the Form F17 restricts the Agreement to Victoria, while the Agreement is a national agreement. RMA is a Victorian based employer, does not operate outside of Victoria and does not contend that the Agreement applies nationally. However, in accepting that clause 3 of the Agreement does not clarify its application, RMA provide an undertaking to address the CFMMEU concerns. To clarify the application of the Agreement I accept the undertaking.

[19] The CFMMEU has compared line by line the differences between the Award and Agreement and contend that because the Agreement contains less beneficial clauses that the differences were unlikely to have been explained to employees. Consequently, it submits that the Commission cannot be satisfied that reasonable steps have been taken to explain the Agreement by the Applicant. The comparisons are minor in effect taking into consideration the drafting of the Agreement, the incorporation of the Award and the steps taken by the Applicant to explain the Agreement. It is also of relevance that employees were provided with a copy of the Award and they have historically been subject to the Award. It is also relevant that the differences between the Award and Agreement are minor in nature taking into consideration that the terms of the Agreement pass the BOOT. I accept the RMA submissions that the explanation to employees occurred over a two-hour period where clause by clause was discussed. Employees also had access to the Agreement and the Award over the access period. I do not disregard that the majority of employees had voted for the Agreement.

[20] 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.

[21] 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.

[22] The Agreement is approved and in accordance with s.54, will operate from 16 June 2021. The nominal expiry date of the Agreement is 1 August 2024.

COMMISSIONER

Annexure A

 1   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77

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