Southern Quarries Pty Ltd

[2023] FWCA 873

[2023] FWCA 873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Southern Quarries Pty Ltd

(AG2023/457)

SOUTHERN QUARRIES ENTERPRISE AGREEMENT 2022

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 24 MARCH 2023

Application for approval of the Southern Quarries and Direct Mix Concrete Drivers Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement originally described as the Southern Quarries and Direct Mix Concrete Drivers Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Direct Mix Concrete Pty Ltd (the Applicant).  During the course of this matter leave was granted to amend that name of the Applicant to Southern Quarries Pty Ltd[1].  The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 6 March 2023.

1. On 10 March 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·        Clause 7.2 of the agreement provides that an employee must notify the employer of an absence on personal/carer’s leave as soon as reasonably practicable and, in any event, prior to the start of the shift. whereas s.107 of the Act provides that notice must be given as soon as practicable (which may be a time after the leave has started).

·        Clause 7.3 of the Agreement provides that the employer and the majority of employees may agree to substitute a nominated public holiday to another day whereas s.115(3) of the Act provides that such substitution may only occur by agreement between the employer and an employee. 

1. Clause 1.4 of the Agreement acts as an effective NES precedence clause, in that it states that the Agreement is read in conjunction with the NES as amended from time to time and where a provision of the NES is more generous that the Agreement, the NES will prevail. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

Undertakings

1. The Applicant has submitted an undertaking in the required form dated 20 March 2023.

1. The Applicant advised that the NERR supplied upon lodgement was not the one distributed.  The NERR which was distributed to employees identified Southern Quarries Pty Ltd as the employer.  Despite this the Agreement contains a reference to Direct Mix in its title, and Direct Mix Concrete Pty Ltd as a party bound by the Agreement, and the definition of employer includes Adbri and Hy-Tec Industries Pty Ltd.  The Applicant advised that the references to entities other than Southern Quarries Pty Ltd as in error and has provided undertaking to modify the name of the Agreement, the parties and the definition of the employer etc. Taking into account the circumstances I find that this does not represent a substantial change to the Agreement.

1. The Applicant also submitted a revised Form F17.

1. The undertaking also deals with a BOOT issue in that the casual loading rate of 25% will be paid cumulatively upon shift, weekend, and public holiday penalties. Casual workers undertaking overtime will receive a casual loading rate of 10%.

2. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

Approval

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 29 March 2023.

COMMISSIONER

[1] Refer paragraph [7]

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