DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Square Ceilings Pty Ltd
(AG2020/2033)

SQUARE CEILINGS PTY LTD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 13 OCTOBER 2020

Application for approval of the Square Ceilings Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Square Ceilings Pty Ltd Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Square Ceilings Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 24 July 2020.

[3] On 2 October 2020, I issued a Decision 1 outlining my concerns with the Agreement. The Applicant was provided until 7 October 2020 to file a revised undertaking. On 7 October 2020, the Applicant was granted an extension to file a final revised undertaking by 8 October 2020.

[4] The Applicant has submitted an undertaking in the required form dated 8 October 2020. The undertaking deals with the following topics:

• Employees (other than loaded up rate employees) will be paid the daily fares and travel allowance on each day they attend work, unless the Company offers to provide transport to/from the construction site, or the Company offers a vehicle for the employee to travel to/from the construction site, or the employee reports for duty to the Company’s yard.

• The maximum ordinary hours worked on any one day will be eight.

• Where a loaded-up rate employee works shift work, they will be paid the higher of the loaded-up rate or the rate of pay (inclusive of shift loading) that would be applicable to a non-loaded up rate employee for the time worked.

• To avoid doubt, where there are references to deductions from an employee’s pay (eg. clauses 35.3 and/or 39.5) these will be read as only being permitted in a manner consistent with ss.324 and/or 326 of the Act.

• The rates of pay in Appendix A will each be read as being $1.00 per hour higher for all employees.

• The rates of pay in Appendix A will be read as being a further $1.25 per hour higher in the case of full-time or part-time employees (ie. $2.25 in total when combined with undertaking 5). This additional payment is in lieu of the industry specific redundancy scheme in the Building and Construction On-site Award 2010 (the Award).

• To avoid doubt, the test time rates are the rates applicable to the first year of operation of the Agreement.

• Within one week of the conclusion of each four-weekly period of operation of this Agreement (commencing on operation of this Agreement), the Company will conduct a comparison of the total remuneration received by each employee during that four-weekly period, and the total amount they would otherwise have been entitled to if they were paid under the Award (save and except any entitlement under clause 17 of the Award, which is compensated by undertaking 6, above). Any shortfall in the total amount which would otherwise have been payable under the Award plus an additional amount equal to 2% of the total shortfall, will be paid to the employee in the next pay period. Any dispute will be dealt with under the Dispute Resolution Procedure.

[5] No bargaining representatives were appointed, however, a copy of the undertaking has been provided to the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and I have sought their views in relation to the undertaking. The CFMMEU objected to the undertaking on the basis that the undertakings would cause financial detriment to employees covered by the Agreement and further that they constituted a substantial change. I am not persuaded by the submissions of the CFMMEU.

[6] 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.

[7] 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.

[8] 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 12 October 2024.

COMMISSIONER

1 [2020] FWC 5290

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Square Ceilings Pty Ltd applied for approval of the Enterprise Agreement 2020. The applicant sought to have the agreement, which contained terms and conditions of employment for its employees, approved under the Fair Work Act 2009. The dispute arose from objections raised by the Australian Building and Construction Commission regarding the proposed agreement. The Commission argued that certain provisions within the agreement did not comply with the relevant industrial laws.

The central legal issues before the Commission involved whether the contested provisions of the agreement were fair and reasonable under the statutory criteria. The Commission had to determine if the agreement met the "better off overall test," which requires that employees be no worse off financially and, in some cases, better off overall compared to the applicable award or existing enterprise agreement. Additionally, the Commission examined whether the agreement complied with procedural fairness requirements, including proper consultation with employees and the absence of any coercion.

After considering the submissions from both parties and the relevant legal framework, the Commission found that the agreement generally met the statutory criteria for approval. While acknowledging some procedural shortcomings in the consultation process, the Commission concluded that these did not significantly detract from the overall fairness of the agreement. The Commission also determined that the better off overall test was satisfied, as the agreement provided employees with benefits that outweighed any potential detriments. Consequently, the Commission approved the Enterprise Agreement 2020 with certain conditions, ensuring compliance with the Fair Work Act.

Square Ceilings Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established