Robinson Civil Constructions FNQ Pty Ltd T/A Robinson Civil Group

[2020] FWCA 2278

[2020] FWCA 2278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Robinson Civil Constructions FNQ Pty Ltd T/A Robinson Civil Group
(AG2020/1008)

ROBINSON CIVIL GROUP ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 MAY 2020

Application for approval of the Robinson Civil Group Enterprise Agreement 2020.

[1] Robinson Civil Constructions FNQ Pty Ltd T/A Robinson Civil Group (the Employer) has applied for approval of an enterprise agreement known as the Robinson Civil Group Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. No union or employee bargaining representatives were involved in the agreement making process to which I could seek the views of pursuant to s.190(4) of the Act regarding the undertakings.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] The Employer has not met the legislated timeframe between making the Agreement and lodging the application per s.185(3) of the Act. The Employer has submitted that the timeframe for lodgement was not met because the Chief Executive Officer of the Employer was on annual leave and therefore unable to sign the application documents. I consider it fair in all the circumstances to extend the timeframe for lodgement until the date the application was lodged pursuant to s.185(3)(b) of the Act.

[5] Clause 8.7 of the Agreement is inconsistent with s.115(3) of the Act with respect to agreement between the Employer and its employees about the substitution of a day or part-day that would otherwise be a public holiday within the meaning of s.115(1)-(2) of the Act. I note that s.115(3) of the Act prevails clause 8.7 of the Agreement to the extent of the inconsistency.

[6] I note that Clause 5.5 of the Agreement provides redundancy in accordance with the National Employment Standards (NES). However, the Building and Construction Industry General On-site Award 2010 (the Award)contains an industry-specific redundancy scheme, which provides payment in the first year of employment, and for following years even when an employee leaves their employment at their initiative. The Award redundancy would not apply to employees covered by the Agreement.

[7] I required the Employer to provide detailed calculations for a scenario of an employee working 50 hours per week, and for 51 weeks. The calculations demonstrate that the employee would be marginally better off overall under the Agreement than the Award under this relevant scenario, as the higher pay rate over the course of almost one year is greater than the amount of redundancy pay under the Award.

[8] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 June 2020. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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Annexure A: