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

[2021] FWCA 5482

[2021] FWCA 5482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SSX Services Pty Limited T/A ARC / The Australian Reinforcing Company
(AG2021/6793)

THE AUSTRALIAN REINFORCING COMPANY NORTH AND WEST QLD ENTERPRISE AGREEMENT 2021 TO 2025

Manufacturing and associated industries
COMMISSIONER MATHESON	SYDNEY, 2 SEPTEMBER 2021

Application for approval of The Australian Reinforcing Company North and West QLD Enterprise Agreement 2021 to 2025.

[1] An application has been made for approval of an enterprise agreement known as The Australian Reinforcing Company North and West QLD Enterprise Agreement 2021 to 2025 (Agreement). The application was made by SSX Services Pty Limited T/A ARC / The Australian Reinforcing Company (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Notice of employee representational rights

[2] A Form F17 was filed in support of the application. Attached to the Form F17 was a copy of the Notice of Employee Representational Rights (NERR) giving notice that bargaining was to commence for the ‘ARC/The Australian Reinforcing Company Sunshine Coast QLD Enterprise Agreement’. This name is different to the name stated in clause 1 of the Agreement. On 27 August 2021, the Commission sought submissions regarding the impact of the difference in Agreement name compared to the name in the NERR and also noted there was a minor difference in the name of the Agreement as set out in the application.

[3] Further information was provided by the Applicant on 30 August 2021. The Applicant noted that the change in name arose as during the negotiations it was identified that one of the sites to be covered was not considered to be in the Sunshine Coast. The Applicant noted it was agreed during negotiations that a more appropriate geographic reference would be ‘North and West QLD’. The Applicant stated that the correct name of the Agreement was ‘The Australian Reinforcing Company North and West QLD Enterprise Agreement 2021 to 2025’.

[4] The NERR attached to the Form F17 also described coverage with reference to sites in ‘Strathpine, Toowoomba, Kunda Park and Maroochydore’. This was different from clause 3(a)(ii) of the Agreement which referred to an additional site in Bundamba. Further information was provided by the Applicant noting that the Bundamba site is a new site and does not have any employees.

[5] Having regard to all the material before the Commission, I am satisfied that the difference in the name of the Agreement and geographical coverage as described in the NERR did not prevent the Agreement from being genuinely agreed to and that employees covered by the Agreement were not likely to have been disadvantaged by this difference. I am also satisfied that a correction should be made to the application to reflect the name of the Agreement as ‘The Australian Reinforcing Company North and West QLD Enterprise Agreement 2021 to 2025’ and I do so pursuant to s.586 of the Act.

Pre-approval steps – s.180(2)

[6] The pre-approval steps undertaken by the Applicant in accordance with s.180(2) of the Act were declared in the Form F17 filed in support of the application. The Commission sought clarification regarding whether employees were provided with access to material incorporated by reference in the Agreement. On 30 August 2021, the Applicant provided information addressing this and a conference was also held by the Commission on 30 August 2021 addressing this issue. Having considered the material before the Commission and the Applicant’s submissions that the material was made available to employees, I am satisfied that the requirements of s.180(2) of the Act have been met.

Voting notification – s.180(3)

[7] The Form F17 explained the steps taken and information given to employees about the time and place of vote and voting method. Attached to the Form F17 was a ‘Notice of Vote’, notifying employees of the time and place at which the vote was to occur and the voting method to be used. Based on the material before the Commission, I am satisfied that the requirements of s.180(3) have been met.

Steps taken to explain the terms of the Agreement and its effects – s.180(5)

[8] The steps taken to explain the terms of the Agreement and its effects in accordance with s.180(5) of the Act were declared in the Form F17. The Commission sought further information regarding these steps. On 30 August 2021, the Applicant provided further information via email and during the conference held by the Commission. Having considered the material before the Commission and the Applicant’s submissions, I am satisfied that the requirements of s.180(5) of the Act have been met.

National Employment Standards

[9] I observe that clauses 21.5(g), 21.5(h), 21.7(b) and 27 of the Agreement may be inconsistent with the National Employment Standards (NES). However, clause 5 of the Agreement provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. 

Model flexibility term

[10] Clause 11 of the Agreement provides that for the duration of the Agreement the model flexibility term in accordance with s.202(4) of the Act will apply. This term is attached to and is taken to be a term of the Agreement.

Undertaking

[11] Clause 21.7 of the Agreement was drafted to provide ‘female Employees’ with a ‘paid component of a continuous period of 12 weeks’ maternity leave or 12 weeks’ adoption leave’. I raised concern about this provision in the context of s.186(4) of the Act and a conference was also held on 30 August 2021 addressing this issue. The Applicant has provided a written undertaking to address this concern. A copy of the undertaking is attached at Annexure A (Undertaking).

[12] The Australian Workers’ Union is a bargaining representative for the Agreement. The views of the Australian Workers’ Union were sought in relation to the Undertaking pursuant to s. 190(4) of the Act. On 31 August 2021, the Australian Workers’ Union confirmed it supported the Undertaking.

[13] Pursuant to s.190(3) of the Act I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in a substantial change to the Agreement. I have accepted the Undertaking. In accordance with s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

Ss.186, 187, 188 and 190

[14] On the basis of the materials before the Commission I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

Bargaining representatives

[15] The Australian Workers’ Union, 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 the organisation.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 September 2021. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512959 PR733497>

Annexure A