Ventia Pty Limited

[2024] FWCA 3111

[2024] FWCA 3111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ventia Pty Limited

(AG2024/2452)

VENTIA PTY LTD SYDNEY ROADS ASSET PERFORMANCE CONTRACT 2024

Building Services
DEPUTY PRESIDENT SLEVIN	SYDNEY, 26 AUGUST 2024

Application for approval of a single-enterprise agreement

1. An application has been made for approval of an enterprise agreement known as the Ventia Pty Ltd Sydney Roads Asset Performance Contract 2024 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ventia Pty Limited. The Agreement is single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss 186 and 187 are met.

1. Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s 193A. Under s 193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award.  

1. Here the relevant awards are the Building and Construction On-site General Award 2020 and the Electrical, Electronic and Communications Contracting Award 2020. In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application.  

1. The Australian Workers Union (AWU) is a bargaining representative for the Agreement. The AWU raised the following concerns relation to the BOOT.

1. Clause 6.1.2 of the Agreement covering part-time employment does not specify hours are to be agreed in writing and all time in excess of agreed hours are to be paid at over time  rates; this is currently not in place.

2. Clause 7.1.1 of the Agreement allows for a maximum of 14 hours a day for a day worker whereas the award requires employees to work no more than 8 hours per day.

3. Clause 7.1.2 of the Agreement provides that the span of hours is from 6am to 6pm whereas the award span is from 7am to 6pm.

4. The Clause 7.2.4/9.1.4 continuous shift worker definition is more restrictive than the award definition which is seven days, as opposed to six.

5. The Clause 7.2.2 day shift definition is less beneficial than the award. 6am to 1pm, rather than 6am to 10am. Consequently, the afternoon shift is also not consistent with the award.

6. Clause 8.4 covering higher duties provides that employees have to be rostered for the  whole shift to be paid higher duties. The award provides that:
1.  employee engaged for more than 2 hours, during one day on duties carrying a higher rate than the employee’s ordinary classification, must be paid the higher rate for the whole day. Otherwise, the employee must be paid the higher rate for the time worked at the higher classification.

7. Clause 10.1.5 provides that the employer must apply to reduce the redundancy entitlement in accordance with s120 of the Fair Work Act 2009 and is inconsistent with the NES.

8. Schedule 2 Meal Allowance: $18.10 per occasion. Building Award: Meal Allowance is $18.51

9. Schedule 2 First Aid Allowance: $3.58 per day or $5.67 per day for employees who hold a higher first aid certificate cf Building Award: First Aid Allowance is $3.72 per day or $5.88 per day for employees who hold a higher first aid certificate.

10. Schedule 2 Vehicle Allowance: $0.95c / km cf Building Award and Electrical Award: Vehicle Allowance $0.98c / km

11. Schedule 2 Working Away from Home Allowance: $80.00 per night cf Building Award: Living Away from Home Allowance is $100.11 per day. Electrical Award: Living Away from Home Allowance is $701.21 per week.

1. In relation to these concerns the Applicant provided undertakings. The undertakings were provided to the AWU and no objection was raised. I did not have any further issues to raise. A copy of the undertakings is attached at Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.

1. Given the explanations provided by the applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met.

1. The Agreement does not cover all employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Having regard to the undertakings and the material contained in the application and filed in relation to it, including submissions of the Applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.

1. The Australian Workers Union (AWU) 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.

1. The Agreement was approved on 26 August 2024, and, in accordance with s.54, will operate from 2 September 2024 2024. As per Clause 1.3.1 the nominal expiry date is 30 June 2027

DEPUTY PRESIDENT

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Annexure A