Vos Construction And Joinery Ptd Ltd T/A Vos Construction And Joinery

[2024] FWCA 4520

[2024] FWCA 4520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Vos Construction And Joinery Ptd Ltd T/A Vos Construction And Joinery

(AG2024/4727)

VOS CONSTRUCTION AND JOINERY PTY LTD [CONSTRUCTION SOUTH] & CFMEU ENTERPRISE AGREEMENT (TAS) 2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 17 DECEMBER 2024

Application for approval of the Vos Construction and Joinery Pty Ltd [Construction South] & CFMEU Enterprise Agreement (Tas) 2024

1. An application has been made for approval of an enterprise agreement known as the Vos Construction and Joinery Pty Ltd [Construction South] & CFMEU Enterprise Agreement (Tas) 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Vos Construction And Joinery Ptd Ltd T/A Vos Construction And Joinery (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 9 December 2024.

1. On 10 December 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters.

1. The Applicant provided submissions and supporting material to resolve the pre-approval concerns identified. The information is relevantly summarised below:

·  Voting Cohort has sufficient interest and sufficiently representative:

The Applicant advised that that 45 Carpenters, 2 General Labourers, 12 Apprentices participated in the vote. In the circumstances, I accept that the voting cohort has sufficient interest and are sufficiently representative.

·  Explanation of Agreement:

On 20 November 2024, the employer held a meeting to the explain the Agreement, changes and invited the employees to ask questions. At the same meeting, CFMEU representatives conducted their own explanation without the employer present. A Statutory Declaration of Kim Dillon dated 13 December 2024 was provided.

1. There are four National Employment Standard (NES) issues that require comment:

·  Clause 30.3(a) provides for compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies, however, it is silent in relation to compassionate leave for stillbirth/miscarriage as provided by s.104(1)(b) and (c) of the Act.

·  Clause 31(a) provides ‘the Company and the employees may agree to substitute another day for any prescribed in this clause. Section 115(3) of the Act does provide that an employer and employee may agree on a substitution of a Public Holiday, however it does not appear to provide for a majority of employees and the employer to substitute a Public Holiday and for this to be binding on a single employee.

·  Clause 13.2(b) provides that Clause 16 of the Award will apply to Daily Hire Employment and Termination. Clause 16 of the Award relates to Ordinary Hours of work and rostering arrangements whereas Clause 40 relevantly provides for Termination of Employment.

·  Schedule 1, Clause 4.4 provides that ‘in the event of an apprentice being dismissed or leaving employment before the cost of tool kit has been reimbursed the Company shall be emitted to: (a) deduction from any wages due to the apprentice the remaining cost of the tool kit; or (b) by agreement retain tools at the originally nominated value to the amount still owing.’ This appears to permit the employer, to withhold monies owing to the employee under the NES.

1. Clause 6.4 of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Applicant submitted an undertaking in the required form dated 13 December 2024.  The undertaking deals with the following topics:

·  The flexibility term contained in Clause 16 is amended to ensure that any individual flexibility arrangement:

a)must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and

b)must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.

·  The rates of pay for apprentices will be no less than the rates of pay that would apply under the Award (noting the Agreement provides other more beneficial terms which satisfy the BOOT).

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

1. 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.

1. There were concerns about omissions from the Delegates Rights Clause contained in the Agreement, however I note that the Agreement is read in conjunction with the Building and Construction General On-site Award 2020 which has the result of remedying any defect.

1. The Construction, Forestry and Maritime Employees Union, being the 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) of the Act I note that the Agreement covers this organisation.

1. 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.

1. The Agreement is approved and (despite the wording of Clause 5 of the Agreement) in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 May 2028.

COMMISSIONER

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