Stowe Australia Pty Ltd

[2013] FWCA 7364

[2013] FWCA 7364

The attached document replaces the document previously issued with the above code on 25 September 2013.

The document has been amended to amend an incorrect reference.

Laura Fitzpatrick

Associate to Senior Deputy President Richards

Dated 26 September 2013

[2013] FWCA 7364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Stowe Australia Pty Ltd
(AG2013/2939)

STOWE AUSTRALIA CURTIS ISLAND LNG PROJECTS AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 SEPTEMBER 2013

Application for variation of the Stowe Australia Curtis Island LNG Projects Agreement 2013.

[1] This application is made by Stowe Australia Pty Ltd to vary the Stowe Australia Curtis Island LNG Projects Agreement 2013 (“the Agreement”) pursuant to s.217 of the Fair Work Act 2009 (the Act) to remove ambiguity or uncertainty.

[2] The Act provides as follows:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

[3] The Employer submits that the Agreement contains a number of ambiguities or uncertainties relating to the definition of a non-local employee; payout of accrued leave on termination; naming of classifications; and example rosters.

[4] The Employer has consulted with employees who are currently covered by the Agreement as well as those who will be engaged on the Project in the near future. A number of statements from employees have been provided to the effect that the employees agree with the proposed variations. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”), who was a bargaining representative for the Agreement and is covered by the Agreement, has provided correspondence that it does not object to the proposed variations.

[5] It is appropriate in these circumstances that the uncertainty be resolved by a variation to the Agreement. The Agreement will be varied as outlined in Annexure A of this decision.

[6] The consolidated version of the Agreement, as varied, is attached to this decision.

[7] The variation is approved and will come into operation on 25 September 2013.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE403529  PR542390>

Annexure A

1. By deleting Clause 3(b)(4) and Clause 3(b)(5) and inserting the following:

Clause 3(b)(4): For the purpose of geographically defining a Non-Local Employee engaged under the terms of the Agreement, it includes any employee whose usual place of residence is outside of a 60 kilometre radius of the nearest Post Office to the Project. In the case of Gladstone Projects, the centre point of the radius is the Gladstone DC Post Office.

2. By renumbering Clause 3(b) (6) as Clause 3(b) (5) and Clause 3(b)(7) as Clause 3(b)(6).

3. By deleting the classification ‘Carpenter (not indentured)’ from Clause 12.3(e)(1) Group A and inserting the classification ‘Formworker/Formsetter’.

4. By deleting Clause 16.2(h) and inserting the following:

Clause 16.2(h): Employees who have a paid personal leave entitlement accrued on a Project will have any unused portion of the entitlement paid out on termination.

5. By deleting Clause 27 Appendix 2 and inserting the following:

Clause 27 - Appendix 2

EXAMPLE LOCAL ROSTER

(a) The roster below provides an example of a potential local RDO roster for the Project.

The key principals of the example roster below are:

Regular rostered overtime Monday to Friday for all employees

(2) Overtime may be available for employees on weekends

(3)Hours worked Monday to Friday as a minimum for all employees

(4)The Employee will be advised what Roster Cycle he / she is required to work in their offer of employment.

(5)The Roster Cycles may be staggered with up to 4 separate cycles (e.g. A - D)

(6)Each Roster Cycle includes the ability for employees to:

(i) Take a combination of 2 RDOs, either on the Monday and Tuesday or Thursday and Friday following the completion of a four week roster cycle; or

(ii) To bank a maximum of six (6) RDOs, and where agreed with the Employer, use for a specific purpose (e.g. "Annual Holidays"); or to have those six (6) banked RDOs paid out; or

(iii) Elect to bank all accrued RDOs and have those paid out upon termination of employment; or

(iv) The Employer, by agreement with the affected employee or employees, may substitute a designated RDO for another day to allow greater continuity of operations.

(7) The Employer will not be required to pay overtime rates for any RDO worked in the above circumstances;

(8) RDOs will be paid out at the employee's Base Hourly Rate

(a) The example Roster Cycle A below is a roster based on the employee electing to accrue their RDOs. Employees have the option to accrue and bank six (6) RDOs and use for a specific purpose such as annual leave or they may elect to have the RDOs paid out. The employee also has the option of banking all accrued RDOs and having them paid out upon termination of employment.

The shaded days are weekend days. All other days are required work days. The rosters detailed below do not take in to account paid out rest breaks when calculating overtime.

Roster Cycle A

Roster Cycle A	Week 1							Week 2
M	T	W	T	F	S	S	M	T	W	T	F	S	S	Total
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 hours ordinary
RDO Accrual	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	2	2	2	2	2	-	20 Hours
Double Time	-	-	N/A

Roster Cycle A	Week 3							Week 4
M	T	W	T	F	S	S	M	T	W	T	F	S	S	Total
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 hours ordinary
RDO Accrual	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	-	2	2	2	2	2	-	-	20 Hours
Double Time	N/A

(b) The example Roster Cycle B below is a roster based on the employee electing to take their accrued RDOs upon the completion of four weeks worked. Roster B requires employees, who elect to take their RDOs, to take them on Thursday and Friday of the last week of the cycle.

The shaded days are weekend days or potential RDO days, dependent upon employee's elective. All other days are required work days. The rosters detailed below do not take in to account paid out rest breaks when calculating overtime.

Roster Cycle B

Roster Cycle B	Week 1							Week 2
M	T	W	T	F	S	S	M	T	W	T	F	S	S	Total
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 hours ordinary
RDO Accrual	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	2	2	2	2	2	-	16 hours
Double Time	-	-	N/A

Roster Cycle B	Week 3							Week 4
M	T	W	T	F	S	S	M	T	W	T	F	S	S	Total
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	RDO (7.2)	RDO (7.2)	-	-	72 hours ordinary
RDO Accrual	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	RDO	RDO	6.4 hours RDO accrual
Time and a Half	2	2	2	2	2	-	2	2	2	RDO	RDO	-	16 hours
Double Time	-	RDO	RDO	-	N/A

(c) The example Roster Cycle C is based on the same principals as Roster B with the exception that the RDOs, should they be elected to be taken, will be required to be taken on the Monday and Tuesday following the completion of their work cycle. Roster C is based on an employee commencing their work cycle mid-week and having already completed a work cycle.

Roster Cycle C

Roster Cycle C	Week 1							Week 2							Total
M	T	W	T	F	S	S	M	T	W	T	F	S	S
Ordinary Hours Paid	(RDO) 7.2	(RDO) 7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 hours ordinary
RDO Accrual	RDO	RDO	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	6.4 hours RDO accrual
Time and a Half	RDO	RDO	2	2	2	-	2	2	2	2	2	-	16 hours
Double Time	RDO	RDO	-	-	N/A

Roster Cycle C	Week 3							Week 4							Week 5		Total
M	T	W	T	F	S	S	M	T	W	T	F	S	S	M	T
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	RDO	RDO	72 hours ordinary
RDO Accrual	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	0.8	RDO	RDO	8 hours RDO accrual
Time and a Half	2	2	2	2	2	-	2	2	2	2	2	-	RDO	RDO	20 hours
Double Time	-	-	RDO	RDO	N/A

EXAMPLE NON-LOCAL ROSTER

(a) Roster Cycle A below provides an example of a potential non-local roster for the Project. The key principals of the example roster below are:

Commencement of roster cycle on Wednesday

Last work day of roster cycle (28th day) is Tuesday in Week 4-4 hours is worked

Regular rostered overtime Monday to Saturday for all employees, with 10 hours worked weekdays and 8 hours worked on Saturday

Additional Overtime may be available for employees on Sunday's when required

Accrued RDOs paid out during R&R period or upon termination from the Project

The grey shaded days are days upon which work is not rostered and the light green shaded areas denote the non-worked R&R period. All other days are required work days. The rosters detailed below do not take in to account paid out rest breaks when calculating overtime.

Roster Cycle A	Week 1							Week 2
M	T	W	T	F	S	S	M	T	W	T	F	S	S	Total
Ordinary Hours Paid	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	57.6 hours ordinary
RDO Accrual	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	6.4 hours RDO accrual
Time and a Half	2	2	2	2	2	2	2	2	2	2	20 hours
Double Time	6	6	12 hours

Roster Cycle A	Week 3							Week 4
M	T	W	T	F	S	S	M	T	W	T	F	S	S	Total
Ordinary Hours Paid	7.2	7.2	7.2	7.2	7.2	-	-	7.2	7.2	7.2	7.2	7.2	-	-	72 hours ordinary
RDO Accrual	0.8	0.8	0.8	0.8	0.8	-	-	0.8	0.8	0.8	0.8	0.8	-	-	8 hours RDO
Time and a Half	2	2	2	2	2	2	-	2	2	2	2	2	2	-	24 hours
Double Time	6	6	12 hours

Roster Cycle A

Week 5

M

T

W

T

F

S

S

M

T

W

T

F

S

S

Total

Ordinary Hours Paid

7.2

7.2

R&R

R&R

R&R

R&R

R&R

R&R

R&R

14.4 hours ordinary

RDO Accrual

0.8

0.8

R&R

R&R

R&R

R&R

R&R

R&R

R&R

1.6 hours RDO accrual

Time and a Half

2

R&R

R&R

R&R

R&R

R&R

R&R

R&R

2 hours

Double Time

R&R

R&R

R&R

R&R

R&R

R&R

R&R

* The R&R period officially starts on Wednesday, the day following the 28 day worked. A maximum of seven (7) days of R&R is able to be taken with a re-commencement of work at the normal start time on the following Wednesday.

** The last working day or shift (day 28) worked requires the employee to work four (4) hours. The employee is also paid an additional four (4) hours as per clause 9.5 to enable them to ready themselves for R&R travel. Such payment is paid and counted as "time worked" where the last working day or shift is a Monday - Friday day or shift. The payment will not be deemed as time worked and shall be paid at ordinary time should the last working day or shift of an employees work roster be a weekend day or shift.

"** The initial work cycle may be longer or shorter duration than the 28 days in order for employees to be placed within an existing roster cycle. In such instances the provisions of sub-clause 9.5 (c) will apply

"** Subject to the Project's requirements, variations of rosters will be determined by the Employer to ensure that a roster that best suits the operational requirements of the Project are implemented. Various factors as outlined in Section 8 of this agreement will be considered during this process