Wearx Employee Services Pty Limited

[2014] FWCA 3535

[2014] FWCA 3535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Wearx Employee Services Pty Limited
(AG2014/951)

WEARX EMPLOYEE SERVICES (OLYMPIC DAM SOUTH AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 26 MAY 2014

Application for approval of the Wearx Employee Services (Olympic Dam South Australia) Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Wearx Employee Services (Olympic Dam South Australia) Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wearx Employee Services Pty Limited. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“1 ...

2 With regards to clause 6 of the Agreement, the agreement incorporates the terms and conditions of the Manufacturing and Associated Industries and Occupations Award 2010 (“the Award”), except where there is any inconsistency between a term in the Agreement and a term in the Award, whereby the term in the Agreement shall prevail to the extent of the inconsistency.

3 It is not the intention of the Company to undermine the provisions of the Award, rather the Agreement is to provide terms and conditions which are more beneficial to employees than what they would receive if they worked to the Award rates of pay. Attached to this Undertaking and marked Annexure “A” is a comparison of Wage Rates between ordinary hours under the Award and under the Agreement. The Agreement also includes under “Other Payments” rates for Sunday Overtime and Public Holiday work.

4 With regards to clause 5&6 of the Agreement, it is the intention of the parties to implement systems of ordinary hours that are consistent with the National Employment Standard.

To ensure that intention the Company will undertake not to impose any system of work that contravenes Chapter 2 Pt2-2 - Div 3 - Maximum Weekly Hours.

Ordinary Hours of Work under the Agreement are an average of 38 per week but not exceeding 152 hours in 28 days.

The hours of actual work can vary at Olympic Dam depending upon the demand for maintenance services by the Principal, although are agreed to be between 8 to 12 hours within any 24 hour period. The current starting time for employees to be covered by the Agreement 6.30am, with finishing time 6.30pm.

The Company plans to implement a system of day work which on average are 13 days worked with 8 days off. Starting times on each day is 6.30am with finishing time at 6.30pm representing a 12 hour day. Where employees are rostered on a Sunday, they receive the rates identified under the Agreement “Sunday Overtime Hourly Rates, which is higher than the hourly rates for Monday-Saturday.

Attached to this Undertaking and marked Annexure “B” is a comparison of Wage Rates between the hourly rate under the Award and that under the Agreement.

The hourly rates under the Agreement factor into account the penalties rates employees would have received under the Award and the Company undertakes that no employee will receive an hourly rate of pay less than that which the employee would have received under the Award for their particular classification for work performed.

5 The 12 hours of work arrangement must and will be followed by a 10 hour minimum rest period from the completion of one period of work or shift to the commencement of another. This is a procedural requirement to ensure that the Company and the employees meet the requirements of fatigue management.

The Company monitors rest periods and undertakes that all employees will receive a minimum of 10 hours rest between each period of work. Further, the Company undertakes that a minimum of 24 hours uninterrupted rest period will be taken by employees within any 14 day work cycle.

The Company undertakes that a maximum of 13 consecutive days can only be worked out of 14 days at any one time. The hours of work include travel time from normal place of work to site with a maximum flying time capped at 10 hours and driving time capped at 14 hours payment.

Following a period of any night shift the Company undertakes that a minimum of 36 hours time off will be provided to an employee before the commencement of a new roster cycle.

Fatigue Management will be conducted by the Company which will be consistent with the Olympic Dam Fatigue Management Plan which is annexed to this Undertaking and marked with the Letter C.

6 The working of shift work, both afternoon and night, be employees of the Company is not common, however, when worked the Company undertakes to comply with the Special Provisions for Shift Workers under the Award and will ensure that employees receive an hourly rate of pay for such shift work above that under the Award.

7 These undertakings are provided on the basis of issues raised by Fair Work Commission in the application before it.” (sic)

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 June 2014. The nominal expiry date of the Agreement is 28 February 2018.

SENIOR DEPUTY PRESIDENT

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