Super Movers Pty Ltd T/A Carlingford Removals/Cherrybrook Removals

[2016] FWCA 6665

[2016] FWCA 6665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Super Movers Pty Ltd T/A Carlingford Removals/Cherrybrook Removals
(AG2016/4449)

SUPER MOVERS PTY LTD ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 16 NOVEMBER 2016

Application for approval of the Super Movers Pty Ltd Enterprise Agreement 2016

[1] An application has been made by SuperMovers Pty Ltd T/A Carlingford Removals/Cherrybrook Removals (the applicant) for the approval of an enterprise agreement known as the Super Movers Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all drivers and furniture removal assistants for the applicant. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

Consultation Term

[3] The consultation term at clause 30 of the Agreement does not meet the requirements of s.205(1A) of the Act. The clause does not require the employer to consult with employees about a change to their regular roster or ordinary hours of work, as required under s.205(1)(a)(ii) of the Act.

[4] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model consultation term is attached at Annexure A of this decision.

Shiftworkers

[5] The Commission wrote to the applicant seeking clarification as to whether the Agreement allowed for the employment of shiftworkers, and if so, whether they would be entitled to an extra week of annual leave in accordance with the National Employment Standards.

[6] The applicant confirmed that no shiftworkers would be employed under the Agreement, and provided an undertaking in these terms. 

Hours of work

[7] The Commission wrote to the applicant with concern relating to clause 8.1.2 of the Agreement. That clause states that full time employees may be required to work an average of 40 ordinary hours per week, which is inconsistent with The National Employment Standards guaranteeing that an employee must not be required to work more than 38 ordinary hours in one week unless additional hours are reasonable.

[8] In reply the applicant stated that the reference to 40 hours in the Agreement was an error, and that full time employees will not be required to work more than 38 hours per week, unless the additional hours are reasonable, pursuant to s.62 of the Act.

Better off overall test (BOOT)

[9] With respect to the better off overall test (BOOT) under s.186 of the Act, the base rates of pay under the Agreement are significantly higher than the rates under the Road Transport and Distribution Award 2010 (the Award), being the relevant reference instrument for the purposes of the BOOT. However, the Commission raised a number of issues with the BOOT, outlined below.

Penalty rates and overtime

[10] The Commission wrote to the applicant noting that the Agreement is silent on overtime rates of pay for all employees, and that the Award provides a significantly higher Sunday penalty rate for casual employees. The Commission noted the higher base rates of pay under the Agreement, but had concerns that the increased base rate was not sufficient to compensate employees who work significant additional hours or a significant proportion of their hours on a Sunday.

[11] In relation to Sunday penalty rates, the applicant has responded by providing an undertaking that all casual and permanent employees will, when required to work on a Sunday, be paid penalty rates in accordance with the Award.

[12] In relation to overtime the applicant responded that the average number of hours worked per day is about 6-7 hours, and that overtime is very rarely worked. Further, the applicant stated that the increased base rates of pay were such that they would compensate for any hours worked in excess of 38 hours per week.

[13] The Commission expressed the concern that even with the increased base rates of pay, employees working significant additional hours may not be better off overall and suggested that an undertaking limiting the additional hours required to be worked by employees might rectify the concern.

[14] In response to this concern, the applicant provided an undertaking to limit the number of hours an employee may work without payment of overtime, and to provide that where employees are to entitled overtime payment, the rates will be in accordance with the Award, however the Commission, upon performing a further analysis based upon the undertaking, noted that the undertaking may allow employees to work hours vastly in excess of ordinary hours and reasonable additional hours.

[15] The Commission wrote to the applicant indicating that the undertaking provided did not rectify its concern, and created an additional detriment to employees.

[16] In response the applicant has provided an undertaking that employees who work in excess of their ordinary hours of work will be entitled to payment of an overtime rate of time and one half for the first two hours of work, and double time thereafter.

Part time employees

[17] The Commission wrote to the applicant with the concern that clause 8.2 of the Agreement may mean that part time employees are worse off under the Agreement.

[18] Whereas the Award requires the employer and part time employee to agree upon the hours and days to be worked by the employee prior to commencement of employment, and requires variation of those hours to be by consent, the Agreement at cl.8.2 appears to allow the employer to make decisions in relation to part time employees’ hours of work, and any variations, without need for agreement or consent of the employee.

[19] The applicant has undertaken that upon commencement of the employee’s employment, it and the employee will agree upon the hours and days that will be worked, and that any variation may be made by consent.

Application of the Road Transport (Long Distance Operations) Award 2010

[20] The Commission wrote to the applicant seeking clarification as to how the Road Transport Long Distance Operations Award 2010 (LDO Award) will apply to employees when a journey exceeds 500kms, in accordance with clause 6.1 of the Agreement.

[21] The applicant, in response, has clarified and undertaken that when an employee undertakes a journey exceeding 500km, the wages and all other entitlements under the LDO Award will apply.

Conclusion

[22] Taking into account the higher rates of pay under the Agreement when compared with the Award, and the undertakings provided, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

Undertakings

[23] The undertakings are taken to be a term of the Agreement and a copy is attached at Annexure B. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertakings should be brought to the attention of the employees covered by the Agreement by the applicant.

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

[25] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 16 November 2020.

DEPUTY PRESIDENT

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Annexure A

Annexure B