VEC Civil Engineering Pty Ltd

[2019] FWCA 6721

[2019] FWCA 6721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

VEC Civil Engineering Pty Ltd
(AG2019/2722)

VEC CIVIL ENGINEERING PTY LTD TASMANIAN ENTERPRISE AGREEMENT 2014-2019 STRUCTURES, CIVIL, STEEL

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 OCTOBER 2019

Application for variation of the VEC Civil Engineering Pty Ltd Tasmanian Enterprise Agreement 2014-2019 Structures, Civil, Steel.

[1] An application has been made for approval of a variation to the VEC Civil Engineering Pty Ltd Tasmanian Enterprise Agreement 2014-2019 Structures, Civil, Steel (the Agreement). The application was made by VEC Civil Engineering Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 15 August 2017 . Those undertakings form part of the Agreement as varied.

[6] I note that clauses 15.2, 39.1, 39.2, 39.3, 39.4 and 40 are inconsistent with the National Employment Standards as they provide for an employer to withhold monies owed to an employee on termination, provide for annual leave to be available after 12 months service, provide that carers’ leave cannot be taken for a prescribed person if it is being taken by someone else, provide for compassionate leave only if the death occurs within Australia, provides for parental leave for full-time employees only and does not appear to provide for work on a public holiday to be reasonable or provide for gazetted public holidays. Given the National Employment Standards precedence clause at clause 9.1 of the Varied agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[9] In accordance with s.216 of the Act, the variation operates from 1 October 2019.

DEPUTY PRESIDENT

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