WBHO Infrastructure Pty Ltd T/A WBHO

[2019] FWCA 4542

[2019] FWCA 4542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

WBHO Infrastructure Pty Ltd T/A WBHO
(AG2019/736)

WBHO INFRASTRUCTURE PTY LTD EMPLOYEE AGREEMENT FOR BP KWINANA REFINERY 2019

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 28 JUNE 2019

Application for approval of the WBHO Infrastructure Pty Ltd Employee Agreement for BP Kwinana Refinery 2019.

[1] An application has been made for approval of an enterprise agreement known as the WBHO Infrastructure Pty Ltd Employee Agreement for BP Kwinana Refinery 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by WBHO Infrastructure Pty Ltd T/A WBHO. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 May 2019.

[3] On 3 June 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 27 June 2019. The undertaking deals with the following topics:

•  A four (4) hour minimum engagement will apply for casual employees.

•  Clause 8.2.7.2 of the Agreement will operate subject to notice as contained in clause 8.2.5.

•  Additional part-time provisions have been inserted in clause 8.1.4.3.2.

•  The work cycle described in clause 9.1.5 of the Agreement shall not exceed 3 months.

•  Despite clause 9.3.3 of the Agreement, where an employee is required to work overtime in excess of 1.5 hours after working ordinary hours they will be paid a meal allowance of $15.06, or will at the option of the Applicant, be provided by the Applicant with an adequate and suitable meal.

•  Despite clause 9.4.4 of the Agreement work performed on an RDO will be paid at overtime rates.

•  The reference to 1:00pm in clause 9.7.1(a) of the Agreement will be changed to 10:00am.

•  The reference to 11:00pm in clause 9.7.1(b) of the Agreement will be changed to 3:00pm.

•  The reference to 11:00pm in clause 9.7.1(c) of the Agreement will be changed to 3:00pm, and the reference to 6:00am will be changed to 11:00pm.

•  The definition of shift work in clause 11.1.1(b) of the Agreement shall apply for the purposes of the National Employment Standards (NES).

•  Clause 9.7.4(b) of the Agreement will be deleted.

•  A new rate of pay table has been inserted into clause 10.1 of the Agreement.

•  Clause 10.3.2 of the Agreement has been amended to insert the words, “Saturdays after midday and” after the words “work performed on”.

•  Despite clause 10.3.5 of the Agreement, a minimum engagement of three (3) hours on Saturdays and four (4) hours on Sundays and public holidays will apply.

•  For the purposes of clause 10.3.6 of the Agreement, all work performed on a Saturday following Good Friday will be paid at double time and a half.

•  Clause 10.4.5(a) is replaced with “Employees will be paid a Launder Allowance of $1.00 (flat) per hour worked to compensate for work performed in extraordinarily dirty conditions.”

•  For the purposes of clause 10.4.5(b) of the Agreement, the words “in such conditions” will be deleted.

•  Clause 10.4.7 is inserted:

“Where an Employee is appointed in writing by the Employer to carry out First Aid duties and they hold a recognised first aid qualification from the Australian Red Cross Society, St Johns Ambulance or similar body, which satisfies the relevant statutory requirements to provide first aid services at the location where the Employee works, those duties will be performed in addition to the normal duties of the Employee and will be paid $3.02 per day where they hold the minimum qualification and $4.77 per day where they hold a higher qualification, for each day where they are so appointed.”

•  Clause 10.10 is inserted:

“Apprentices terms rates and conditions will be in accordance with the Building and Construction General On-Site Award 2010 where this Agreement is silent, provided that there will be an additional 20 cents per hour paid and that Apprentices will be entitled to the Site Allowance provided by this Agreement instead of the Industry Allowance provided by the Building and Construction General On-Site Award 2010.”

•  The references to hours in clause 11.1.1(a) and (b) of the Agreement will be replaced with references to weeks.

•  Clause 11.3.1 of the Agreement has been amended to insert the words, “In addition, any other Public Holiday as declared by the relevant State or Territory”.

•  Accident pay in accordance with clause 27 of the Building and Construction General On-Site Award 2010 will apply.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, did not express any view on the undertaking.

[6] 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.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 28 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE504213 PR709864>