Transpacific Industries Pty Ltd

[2013] FWCA 7931

[2013] FWCA 7931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transpacific Industries Pty Ltd
(AG2013/9541)

NEPEAN WASTE MANAGEMENT MORNINGTON CLEANERS ENTERPRISE AGREEMENT 2013

Cleaning services
COMMISSIONER GREGORY	MELBOURNE, 15 NOVEMBER 2013

Application for approval of the Nepean Waste Management Mornington Cleaners Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Nepean Waste Management Mornington Cleaners Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transpacific Industries Pty Ltd. The agreement is a single-enterprise agreement.

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

[3] The Transport Workers’ Union of Australia (Victorian/Tasmanian) Branch who are a bargaining representative for employees covered by the Agreement raised various issues about the entitlements of part time and casual employees under the proposed Agreement. Under the terms of the Agreement a part-time employee can be rostered to work up to 9.5 hours per day at ordinary time rates of pay as part of a 4 day week roster. They can also work up to 38 hours per week without payment of overtime.

[4] The relevant Award provisions require that overtime penalty rates are paid for all hours worked by a part-time employee each day in excess of 7.6 hours worked. (Although, the Award does allow for full-time employees to be rostered for up to 10 hours per day without payment of overtime as part of a cycle which allows additional rostered days off to be taken).

[5] However, the Award does enable part-time employees to be rostered for up to 38 hours per week without payment of overtime on the basis they receive a higher hourly rate than paid to full-time employees. The Agreement does accordingly provide a higher hourly rate for part-time employees. Those rates are also 4.7% higher than the rates contained in the Award. I also note that the minimum engagement provisions in the Agreement are more generous than those in the Award. I am accordingly satisfied, on balance, that the requirements of the better off overall test have been met in terms of the provisions contained in the Agreement.

[6] The Union has also raised issues to do with the different definition of casual employees in the Agreement and the calculation of overtime payments for those employees. I am not satisfied that these are significant issues. Casual employees under the Agreement are also entitled to an hourly rate that is 2.3% higher than the Award. The Agreement again contains minimum engagement entitlements that are in advance of those in the Award. The Agreement also contains “casual conversion” entitlements which are not part of the Award conditions.

[7] The Transport Workers’ Union of Australia, 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), I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 November 2013. The nominal expiry date of the Agreement is 21 November 2017.

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