Top Coat Asphalt Contractors Pty Ltd T/A Topcoat Asphalt

[2019] FWCA 303

[2019] FWCA 303

FAIR WORK COMMISSION

DECISION

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

Top Coat Asphalt Contractors Pty Ltd T/A Topcoat Asphalt
(AG2018/5333)

TOPCOAT ASPHALT ENTERPRISE AGREEMENT 2018

Asphalt industry
COMMISSIONER PLATT	ADELAIDE, 19 FEBRUARY 2019

Application for approval of the Topcoat Asphalt Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Topcoat Asphalt Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Top Coat Asphalt Contractors Pty Ltd T/A Topcoat Asphalt. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 January 2019.

[3] On 14 January 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 15 February 2019. The undertaking deals with the following topics:

•  The definition of shift worker contained in clause 3 shall apply for the purpose of the National Employment Standards (NES).

•  Clause 10(c) shall be included in the Agreement:

“A casual Employee (other than an irregular casual Employee engaged to perform work on an occasional, non-systematic or irregular basis) who has been engaged by the Employer for a sequence of periods over a six-month period, may elect to have their employment converted to full-time or part-time employment if their employment is to continue beyond the conversion process. An Employee may make any such election by giving written notice to the Employer, and the Employer will advise the Employee within four weeks of the request whether it consents to the election. The Employer may refuse this request on reasonable grounds. Where conversion is agreed, the details will be recorded in writing.”

•  Clause 11.8(c) of the Agreement shall be varied as follows:

“Nothing in this Agreement prevents the Employer and an Employee from entering into an agreement prior to the Employee upgrading their truck licence which:

(a) provides for reimbursement by the Employee to the Employer of the direct costs of upgrading that Employee’s truck licence if the Employee resigns, or if their employment is terminated for misconduct, serious misconduct or under performance, within a reasonable stipulated period of time;

(b) provides that reimbursement must take place within the stipulated period of time; and

(c) quantifies the cost of the truck licence upgrade which is limited to direct costs expended by the Employer on behalf of the Employee.”

•  Clause 13.1 of the Agreement shall be varied as follows:

“The ordinary hours of work for full-time Employees are eight hours per day, Monday to Friday, and an average of 40 hours per week (including time worked for RDO accrual purposes).

The ordinary hours of work for non-full-time Employees is less than an average of 40 hours per week over a 4 week period.

A part-time Employee’s ordinary hours of work to be worked each week shall be agreed between the Employer and the part-time Employee in writing on commencement of employment. The regular number of ordinary hours once fixed may be varied in writing by mutual agreement between the Employer and the Employee concerned. All time worked by a part-time Employee in excess of their regular number of ordinary hours will be overtime and paid in accordance with clause 13.2.”

•  The following sentence shall be included at the end of clause 13.2 of the Agreement:

“For the avoidance of doubt, this means all Employees who work in excess of 8 hours per day or in excess of 40 hours per week will be paid overtime. In computing overtime, each day’s work will stand alone.”

•  The words “prior to 6pm” in clause 13.6 of the Agreement will be removed.

•  For the purpose of clause 22.1 of the Agreement, “20 days” shall be read as “4 weeks” of annual leave.

•  The words contained in 22.2 will be replaced with:

“A shift worker shall receive an additional week of annual leave.”

•  For the purpose of clause 22.8, the following words shall be removed: “but annual leave loading shall not be payable”.

•  Clause 29.1 of the Agreement shall be replaced with the following:

“29.1 If an Employee who is at least 18 years old:

(a) does not provide the period of notice required under clause 28.1, then the Employer may deduct from wages due to the Employee under this Agreement an amount that is no more than one week’s wages for the Employee; and

(b) owes the Employer money because the Employer provided a loan to the Employee which has not been repaid, and the Employee provided written authorisation for the deduction of any unpaid loan amounts from their final pay at the time of entering into the loan, then on termination the Employer may deduct any agreed amounts owing on that loan from wages due to the Employee under this Agreement.”

•  For the purpose of clause 30.2, where an employee’s employment is terminated due to abandonment of employment, the employee will be afforded the notice of termination in accordance with the NES.

•  In order to ensure that employees covered by the Agreement are better off overall, the Employer undertakes that:

(a) Where an employee covered by the Agreement works one or more shifts on a Sunday or a public holiday commencing between 6:00pm and midnight in a week, or less than 5 consecutive shifts, the Employer will undertake a reconciliation at the end of that week to determine if the employee’s remuneration received under the Agreement was greater than what the employee would have received under the Asphalt Industry Award 2010 (the Award).

(b) In the event that a reconciliation establishes that an employee has been paid an amount in a week under the Agreement which is equal or less than what they would have received under the Award, the employee will be reimbursed for the difference, plus an additional 1% of the difference.

(c) Where a shortfall has been established, the employee will be paid in the period immediately following the reconciliation.

[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 26 February 2021.

COMMISSIONER

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