Saunders Asset Services Pty Ltd

[2024] FWCA 3422

[2024] FWCA 3422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Saunders Asset Services Pty Ltd

(AG2024/3233)

SAUNDERS ASSET SERVICES PTY LTD ENTERPRISE AGREEMENT 2024 - 2028

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 30 SEPTEMBER 2024

Application for approval of the Saunders Asset Services Pty Ltd Enterprise Agreement 2024 - 2028

Introduction

1. Saunders Asset Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Saunders Asset Services Pty Ltd Enterprise Agreement 2024 - 2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Rate of Pay Comparison and Better Off Overall Test Concerns

1. The rates in the Agreement for employees engaged as E5-L1, E6-L1 (Weekly Hire and Daily Hire) and E6-L3 (Daily Hire) were below the Building and Construction General On-site Award 2020 (the Award). Additionally, employees did not appear better off overall under the Agreement when working a 50-hour week as provided by the Award.

1. Further, the following entitlements provided in the Award were either omitted from the Agreement or were less favourable in the Agreement compared to the Award:

(a)Maximum Hours Per Day

(b)Span of Hours

(c)Weekend Penalties

(d)Casual Minimum Engagement

(e)Shift Penalties

(f)Public Holiday Penalty and Minimum Engagement

(g)Crib Break

(h)Working During Meal Break

1. Meal Allowance

(j)Annual Leave Loading

1. The Employer submitted that the classification matching information it provided to the Commission was incorrect. The Employer subsequently provided an updated classification matching table and undertakings to address the BOOT concerns raised including in relation to (i) and (j) above. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the Commissions and do so pursuant to s.586(a) of the Act. I am also satisfied that the issues identified in (a) – (h) above are satisfactorily resolved by the undertakings provided by the Employer, attached as Appendix 3.

Higher Duties

1. The Agreement is silent on higher duties. Clause 19.10 of the Award provides that where an employee is engaged for more than two hours during one day on duties carrying a higher rate than the employee’s ordinary classification, the employee must be paid the higher rate for the whole day. The Employer submitted that the only higher duties employees would be asked to perform are that of leading hand and would be paid the leading hand allowance in those circumstances.

Trainee Rates

1. The Agreement appears to cover Trainees at Appendix 2. However, rates of pay have not been provided. The Employer submitted that no trainees are currently engaged under the terms of the Agreement and there is no intention to engage trainees during the life of the Agreement.

National Employment Standards (NES) precedence term in Clause 3 in Appendix 3 of the Agreement

1. The entitlement to compassionate leave provided by Clause 16 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

1. This provision may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 3 in Appendix 3 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Delegates’ Rights Term

1. The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Appendix 4.

Section 190 Undertakings

1. The Employer provided written undertakings. A copy of the undertakings is attached in Appendix 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. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 October 2024. The nominal expiry date of the Agreement is 30 September 2028.

DEPUTY PRESIDENT

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