WBHO Infrastructure Pty Ltd T/A WBHO Civil

[2019] FWCA 5244

[2019] FWCA 5244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

WBHO Infrastructure Pty Ltd T/A WBHO Civil
(AG2019/2316)

WBHO INFRASTRUCTURE PTY LTD EMPLOYEE AGREEMENT FOR NEWCREST TELFER GOLD MINE 2019

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 29 JULY 2019

Application for variation of the WBHO Infrastructure Pty Ltd Employee Agreement for Newcrest Telfer Gold Mine 2019.

Summary

[1] An application has been made for the variation of the WBHO Infrastructure Pty Ltd Employee Agreement for Newcrest Telfer Gold Mine 2019 (the Agreement) which was approved by the Fair Work Commission pursuant to s.185 of the Fair Work Act 2009 (the Act) on 12 June 2019.

[2] On 18 July 2019, I conducted a Hearing; Ms Moltoni (with s.596 permission being granted) represented the Applicant.

[3] Clause 9.3.3 of the Agreement concerns the provision of a meal allowance as detailed below:

“9.3.3 An Employee required to work, without notification the previous day or earlier, overtime in excess of one and a half hours after working ordinary hours, will be paid an amount of $15.06 to meet the cost of a meal or will, at the option of the Employer, be provided by the Employer with an adequate and suitable meal.

Note: For the avoidance of doubt, where an Employee is advised upon commencement that there will be a requirement to work regular overtime, the Employee will be deemed to have been advised in accordance with this subclause. This subclause will not apply to an Employee who is provided with reasonable board and lodging or who is receiving a distant job allowance or working away from home allowance.”

[4] The second paragraph of that clause has the effect that the meal allowance will not be paid to a person who is provided with board and lodging or is provided a distant job or working away from home allowance.

[5] During the Agreement approval process the Commission raised a better off overall test concern that there was capacity for the meal allowance not to be paid if the Applicant notified of the requirement to work overtime the previous day, which was not a provision available in the relevant Award.

[6] The Applicant provided an Undertaking which amended clause 9.3.3 of the Agreement. The Undertaking used the word “replaced” which could be interpreted as having the effect of removing the second paragraph of the clause 9.3.3.

Applicable Legislation

[7] Section 217 of the Act provides as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

Consideration

[8] I accept that the interaction between the Agreement as lodged and the Undertaking results in ambiguity and uncertainly as to the application of an allowance in circumstances where employees are provided board and lodging. This arises solely as a result of the use of the word “replaced”.

[9] The Applicant and all of the bargaining representatives have advised me in writing that it was not their intention that the allowance would be paid if employees were provided with a meal (or board and lodging).

[10] In my view, the most appropriate manner in which to address this issue is to vary the Agreement so as to re-insert the second paragraph of the original clause 9.3.3, and I so determine.

[11] Clause 9.3.3 of the Agreement will now read as follows:

“Where an Employee is required to work overtime in excess of one and a half hours after working ordinary hours, they will be paid meal allowance of $15.06.

Note: For the avoidance of doubt, where an Employee is advised upon commencement that there will be a requirement to work regular overtime, the Employee will be deemed to have been advised in accordance with this subclause. This subclause will not apply to an Employee who is provided with reasonable board and lodging or who is receiving a distant job allowance or working away from home allowance.”

[12] This variation will operate from the date of this Decision.

COMMISSIONER

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