Saferoads Pty Ltd
[2009] FWA 200
•2 SEPTEMBER 2009
[2009] FWA 200 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/615)
SAFEROADS PTY LTD (MANUFACTURING) ENTERPRISE AGREEMENT 2009
Metal industry | |
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 2 SEPTEMBER 2009 |
Application for approval of the Saferoads Pty Ltd (Manufacturing) Enterprise Agreement 2009.
[1] An application has been made for approval of an enterprise agreement known as the Saferoads Pty Ltd (Manufacturing) Enterprise Agreement 2009 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Saferoads Pty Ltd (Saferoads). The agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Accordingly, when considering whether to approve the Agreement, I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] The agreement departs from the terms of the Metal, Engineering and Associated Industries Award 1998. 2 Most notably, wage rates incorporate annual leave loading and the tool allowance under the award and overtime payment for two regular weekly overtime hours. Other than the tool allowance, which is incorporated into the Agreement wage rates, the allowance for leading hands and travel and living away from home allowances, allowances and special rates in the award are not provided for in the Agreement. During the hearing, the representative of Saferoads noted that the first aid allowance in clause 5.9.2(b) of the award had been inadvertently left out of the Agreement and Saferoads was prepared to give an undertaking that it would continue to be paid to employees entitled to the allowance under the award. Having regard to the incidence of the conditions upon which the other award allowances would be payable and the inclusion in the Agreement of wage rates in excess of those in the relevant pay scale3 (which will be increased annually to reflect the outcomes of the Minimum Wages Panel of Fair Work Australia), I am satisfied that, on balance, these arrangements are not detrimental to employees covered by the Agreement.
[4] There is some lack of clarity in the Agreement as to ordinary hours of work and payment of overtime rates in respect of reasonable additional hours, when clauses 19(b) and 26(a) of the Agreement are read together. In a hearing on 2 September 2009, the representative of Saferoads clarified that the Agreement operated on the basis of 38 ordinary hours per week, with two additional hours per week worked as regular scheduled overtime, with overtime payments for these two regular overtime hours compensated for by the hourly agreement rate and any additional overtime paid for in accordance with the overtime provisions of the Agreement.
[5] Further, there was a lack of clarity as to the operation of the term “the company’s requirements” in respect of the taking of annual leave in clause 27(b) of the Agreement. The representative of Saferoads was prepared to provide clarity, through an undertaking, that any requirement to take annual leave would be conditioned until 1 January 2010 by the terms of clause 7.1.9 of the Metal, Engineering and Associated Industries Award 1998 and thereafter by the National Employment Standards and any applicable modern award provision dealing with a requirement to take leave.
[6] Finally, in respect of clause 27(e) of the Agreement, dealing with the cashing out of annual leave, the representative of Saferoads was prepared to provide an undertaking to make clear the fact that clause 27(e) would operate in accordance with the National Employment Standards provision in s.93 of the Act.
[7] In these respects, the Company provided a written undertaking in the following terms:
“Saferoads Pty Ltd undertakes that:
1. An employee who has been trained to provide first aid, who is the current holder of appropriate first aid qualifications such as a certificate from the St. John's Ambulance or similar body and is appointed by SafeRoads Pty Ltd to perform first aid duty will be paid a weekly allowance of $12.68;
2. the ordinary weekly hours under the agreement will be 38 hours per week, with two additional hours per week worked Monday to Friday as regular scheduled overtime, with overtime payments for these two regular overtime hours compensated for by the hourly agreement rate and any additional Monday to Friday overtime paid for in accordance with the overtime provisions in clause 26(d) of the agreement;
3. the provision, in clause 27(b) of the agreement “Annual leave shall be given and taken in accordance with the Company’s requirements” will be qualified by the words “subject to, until 1 January 2010, the terms of clause 7.1.9 of the Metal, Engineering and Associated Industries Award 1998 and, thereafter, the National Employment Standards and any provisions of theManufacturing and Associated Industries and Occupations Award 2010 requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances”; and
4. the provision for the cashing out of annual leave, in clause 27(e) of the agreement, if utilised, will be applied in accordance with the National Employment Standards provision in s.93 of the Fair Work Act 2009.”
[8] Approval of the Agreement is subject to the written undertaking.
[9] Having regard to all of these matters and the other terms of the Agreement, I am satisfied that the Agreement does not or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the Agreement. Subject to the written undertakings of Saferoads, I am satisfied that each of the requirements of ss.186 and 187 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, will operate from 9 September 2009. The nominal expiry date of the Agreement is 8 September 2013.
SENIOR DEPUTY PRESIDENT
Appearances:
V Commadeur for Saferoads Pty Ltd.
Hearing details:
2009.
Melbourne:
September 2 (by telephone).
1 Item 2, Part 1, of Schedule 2.
2 AP789529.
3 Even after account is had to the express inclusion of annual leave loading and tool allowances.
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