DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SSX Services Pty Limited T/A ARC/The Australian Reinforcing Company
(AG2018/7243)

THE AUSTRALIAN REINFORCING COMPANY KUNDA PARK ENTERPRISE AGREEMENT 2018 - 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 8 APRIL 2019

Application for approval of the The Australian Reinforcing Company Kunda Park Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the The Australian Reinforcing Company Kunda Park Enterprise Agreement 2018 - 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by SSX Services Pty Limited T/A ARC/The Australian Reinforcing Company. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 March 2019.

[3] On 1 April 2019, 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 the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 2 April 2019. The undertaking deals with the following topics:

• Clause 18.2(c) of the Agreement shall operate subject to notice in accordance with the requirements contained in the National Employment Standards.

• Clause 19.2(f) of the Agreement shall be read as follows:

“Where shifts commence between 11.00 p.m. and midnight on a Sunday or public holiday, the time so worked before midnight does not entitle the employee to the Sunday or public holiday rate for the shift. However, the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into the Sunday or public holiday must be regarded as time worked on the Sunday or public holiday.

Where shifts fall partly on a holiday, the shift which has the major portion falling on the public holiday must be regarded as the holiday shift. By agreement between the employer and the majority of employees concerned, the shift which has the minor portion falling on the public holiday may be regarded as the holiday shift instead.

The extra rates in this clause (19.2 – Overtime Rates of Pay) are in substitution for and not cumulative upon the shift premiums prescribed in clause 20 – Shift Work.”

• Clause 20(b) and clause 20(c) of the Agreement shall be varied as follows:

“An employee who works on an afternoon or night shift which does not continue:

(i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours are worked on each shift); or

(ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 19 – Hours of Work or 20 - Shift work),

must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours.”

• Clause 19.3(a) of the Agreement shall be read as follows:

“…or such other day that is Gazetted as a substitute for or in addition to, any of the said days respectively.”

• Clause 21.8(a) of the Agreement shall be varied as follows:

“The 12 weeks paid leave will apply to a male Employee where he is the primary caregiver for the child or adopted child and otherwise satisfies the requirements to qualify for entitlement to parental leave.”

• Clause 21 of the Agreement shall be varied as follows:

“21.9 Leave to deal with Family and Domestic Violence

Family and domestic violence leave will apply as per clause 45 of the Manufacturing and Associated Industries and Occupations Award 2010 and Company Policy.”

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

[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 from the date of approval of the Agreement. The nominal expiry date is 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of an application by SSX Services Pty Limited trading as The Australian Reinforcing Company for approval of the The Australian Reinforcing Company Kunda Park Enterprise Agreement 2018 - 2021, the Australian Industrial Relations Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The applicant sought to have the enterprise agreement approved for its employees, who are members of the Construction, Forestry, Maritime, Mining and Energy Union. The union did not oppose the application but did raise concerns about certain provisions.

The legal issues before the Commission included whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Key concerns were whether the agreement was genuinely negotiated and if it provided fair and reasonable terms for the employees. The Commission also had to consider whether the agreement met the public interest test, which required that the agreement should not be detrimental to the broader community.

In addressing these issues, the Commission examined the process by which the agreement was negotiated, the content of the agreement, and its implications for the employees and the broader community. The Commission found that the negotiation process was appropriate and that the terms of the agreement were fair and reasonable. The Commission was satisfied that the agreement did not contain any terms that would be detrimental to the public interest. Consequently, the Commission approved the enterprise agreement.

The Australian Industrial Relations Commission approved the The Australian Reinforcing Company Kunda Park Enterprise Agreement 2018 - 2021. The decision confirmed that the agreement complied with the necessary statutory requirements and was approved for the specified period. This outcome allows the agreement to provide a framework for the employment conditions of the relevant workers, subject to the terms and conditions set out in the approved agreement.

SSX Services Pty Limited T/A ARC/The Australian Reinforcing Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established