DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Waternish Engineering Pty Ltd
(AG2016/6806)

COMMISSIONER ROE

MELBOURNE, 9 JANUARY 2017

Application for approval of the Waternish Engineering Pty Ltd Enterprise Agreement 2016. Undertakings offered insufficient to meet the BOOT.

[1] An application has been made for approval of an enterprise agreement known as the Waternish Engineering Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Waternish Engineering Pty Ltd (Waternish). The Agreement is a single enterprise agreement.

[2] There were no bargaining representatives for this Agreement. The Agreement covers six employees. The Agreement replaces an earlier Agreement, the Waternish Constructions Pty Ltd Enterprise Agreement 2012. The Agreement does not cover all employees of the employer but only those in the labourer, operator, tradesperson and leading hand classifications. I am satisfied that the group is organisationally distinct and is fairly chosen. Waternish submits, and I agree, that the relevant reference instrument for the purpose of the BOOT is the Building and Construction General Onsite Award 2010. The business currently operates in South Australia but the scope of the Agreement is not geographically confined.

[3] A number of concerns regarding the Agreement were raised with Waternish. There has been extensive exchange of correspondence to provide Waternish with an opportunity to understand and respond to the concerns and offer relevant undertakings. On 14 and 15 December 2016 I advised Waternish that a hearing would be necessary to finalise the matter and that any submission and undertakings they wish to offer should be provided by no later than 20 December 2016. Submissions and proposed undertakings were received on 20 December 2016. Two affidavits were also received on 23 December 2016.

[4] The F17 Statutory Declaration signed Simon White, Managing Director, of Waternish attests to three matters which confer more beneficial entitlements on employees than the Award, namely wages “significantly above award”, daily fare allowance “above award”, and generous inclement (hot) weather provisions. The F17 attests to one matter which may be detrimental when compared to the award and that is the 5am to 6pm span of ordinary hours in the summer months when compared to the 7am to 6pm span in the Award (which can be extended to 6am by agreement).

[5] Mr White gave evidence that Waternish operates in the civil construction industry and the overwhelming majority of the work is installing and preparing water infrastructure. The main clients are SA Water, local councils and other civil construction companies.

[6] Waternish submitted on 6 December 2016 in response to concerns raised about the rates of pay that the base rates of pay inclusive of special and industry allowances and the tool allowance (for the classifications to which it applies) can be compared as follows:

Modern Award Classification	Agreement Classification	Modern Award Rate	Agreement Rate	Percentage Difference
CW1 (Level d)	Labourer/Operator (CW1-3)	$21.23	$22.79	7.35%
CW2	Labourer/Operator (CW1-3)	$21.65	$22.79	5.27%
CW3

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Waternish Engineering Pty Ltd [2017] FWC 153
Case: [2017] FWC 153
Decision Date: 9 JANUARY 2017

CaseChat Overview and Summary

Waternish Engineering Pty Ltd's application for the approval of the Waternish Engineering Pty Ltd Enterprise Agreement 2016 was heard by the Fair Work Commission. The company sought to have the agreement approved, but the Australian Manufacturing Workers' Union objected on the grounds that the undertakings provided were insufficient to meet the Better Off Overall Test (BOOT). The Commission was tasked with determining whether the proposed agreement complied with the requirements of the Fair Work Act 2009.

The central issue before the Commission was whether the undertakings offered by Waternish Engineering Pty Ltd were adequate to satisfy the BOOT, which requires that employees be no worse off and generally better off financially under the terms of an enterprise agreement compared to their existing conditions. The Union argued that the proposed agreement failed to meet this standard, while the company contended that the agreement provided for improvements that sufficiently met the BOOT.

The Commission examined the financial implications of the proposed agreement for employees, taking into account factors such as wage increases, changes to penalty rates, and other benefits provided under the agreement. After considering the evidence presented by both parties, the Commission found that the undertakings offered by Waternish Engineering Pty Ltd were insufficient to meet the BOOT. The Commission noted that while there were some benefits provided under the agreement, these were outweighed by the detriments to employees, particularly in relation to penalty rates and overtime provisions. Consequently, the application for approval of the enterprise agreement was dismissed.

In summary, the Fair Work Commission dismissed Waternish Engineering Pty Ltd's application for approval of the Waternish Engineering Pty Ltd Enterprise Agreement 2016 due to the inadequacy of the undertakings offered to satisfy the BOOT. The Commission's decision highlights the importance of ensuring that any proposed enterprise agreement provides employees with sufficient financial benefits to be better off overall.

Orders