SEE Civil Pty Ltd

[2015] FWCA 3095

[2015] FWCA 3095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

SEE Civil Pty Ltd
(AG2015/2398)

SEE CIVIL PTY LTD CIVIL CONSTRUCTION WORKER ENTERPRISE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 5 MAY 2015

Application for variation of the SEE Civil Pty Ltd Civil Construction Worker Enterprise Agreement 2014-2018.

[1] On 10 April 2015 SEE Civil Pty Ltd (the Applicant) made an application that the enterprise agreement known as the SEE Civil Pty Ltd Construction Worker Enterprise Agreement 2014-2018 (The Agreement) be varied. The proposed variations were set out as follows:

“1. Insert the following definition in clause 3:

"Inclement weather" means the existence of rain or abnormal climatic conditions (whether hail, extreme cold, high wind, severe dust storm, extreme high temperatures or the like or any combination of these conditions) where it is not reasonable or it is unsafe for employees to continue working in those conditions.

2. Delete clause 23 and replace with the following:

23. Inclement Weather

23.1. The parties agree that a reasonable approach shall be taken to Inclement Weather.
Work will continue unless the Employer (or Employer's representative) and Employees agree that it is either not reasonable or not safe for Employees to continue working on site.

23.2. An Employee working in the fully enclosed cabin of a piece of plant or earthmoving equipment will not be considered to be exposed to Inclement Weather.

23.3. Only Inclement Weather occurring during ordinary hours will be taken into account for the purposes of this clause. Employees will not be entitled accrue or claim Inclement Weather credits for work outside ordinary hours.

23.4. Employees not affected by Inclement Weather may be asked to continue to work, even though other employees may have stopped work because of Inclement Weather.

23.5. Where, in the reasonable opinion of the Employer, Employees affected by Inclement
Weather may be productively utilised elsewhere, Employees may be:

a) transferred to another site or section of a site;

b) required to attend a workshop or another location to perform maintenance and/or attend safety, skills development or training sessions; or

c) attend meetings to discuss the organisation of work.

23.6. Where an employee refuses a reasonable request in accordance with clause 23.5, the Employee will not be entitled to claim Inclement Weather credits.

23.7. Full Time Employees will be credited with 30.4 hours of non-cumulative Inclement Weather credits each month. Where a Full Time employee commences employment during a calendar month, they will receive the following non-cumulative amount of Inclement Weather credits for that month:

a) 30.4 hours where the Employee commences employment on any working day within the first week;

b) 22.8 hours where the Employee commences employment on any working day within the second week;

c) 15.2 hours where the Employee commences employment on any working day within the third week; and

d) 7.6 hours where the Employee commences employment on any working day within the fourth week (or fifth week).

23.8. Part-time Employees will be credited with a pro-rata amount of Inclement Weather credits calculated on hours actually worked.

23.9. Casual Employees are not entitled to accrue or claim Inclement Weather credits in accordance with this clause.

23.10. Where there is a period of annual shutdown, Inclement Weather credits will be pro­rated over the operational weeks of the calendar month.

23.11. Where the Employer advises the Employee no later than 8.00pm (AEST) the night before that the Employee should not report for work due to Inclement Weather or expected Inclement Weather, the Employee will be entitled to claim payment from their RDO credits.

23.12. Where the Employee reports to work and is then sent home prior to commencement of work due to Inclement Weather, the Employee will be entitled to claim four (4) hours pay from their Inclement Weather credits.

23.13. Where the Employee reports to work and is then sent home after the commencement of work due to Inclement Weather, the Employee will be entitled to a minimum payment of four (4) hours pay, comprised of payment for all Ordinary Hours worked before being sent home and, if necessary, topped up with Inclement Weather credits to reach the four (4) hour minimum payment.

23.14. Employees affected by Inclement Weather, who are limited to four (4) hours pay per day (comprised ordinary hours and/or Inclement Weather credits) may elect to top up their paid hours using their RDO credits.”

[2] The application was made within 14 days after the variation was made.

[3] The application was accompanied by an Employer’s statutory declaration in support of variation of an enterprise agreement (Form F23A) and a statutory declaration made by Joshua Reading on behalf of the employees, supporting the proposed variations. Mr Douglas Howard, General Manager, provided a statutory declaration outlining the process by which employees voted on the proposed variations. Mr Douglas declared that a majority of employees supported the proposed variations.

[4] The Commission is satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met.

[5] The variation to the Agreement is approved. A consolidated version of the agreement, as varied, is attached to this decision. In accordance with s.216 of the Act, the variation will operate on and from 6 May 2015.

SENIOR DEPUTY PRESIDENT

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