WesTrac Pty Ltd

[2019] FWCA 6522

[2019] FWCA 6522

FAIR WORK COMMISSION

DECISION

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

WesTrac Pty Ltd
(AG2019/2882)

WESTRAC PTY LTD (NSW AND ACT PRODUCT SUPPORT) ENTERPRISE AGREEMENT 2019

Vehicle industry
COMMISSIONER PLATT	ADELAIDE, 18 SEPTEMBER 2019

Application for approval of the WesTrac Pty Ltd (NSW and ACT Product Support) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the WesTrac Pty Ltd (NSW and ACT Product Support) Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by WesTrac Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 16 August 2019.

[3] On 28 August 2019, and 11 September 2019, I conducted telephone conferences 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 17 September 2019. The undertaking deals with the following topics:

•  Annual leave is expressed in weeks rather than days for both full-time employees and full-time shift workers.

•  The Applicant will maintain more generous annual leave entitlements than as required by the National Employment Standards (NES), if such practices occurred at the time of making the Agreement in regards to particular employees or groups of employees working particular patterns.

•  The Applicant provides that part-time employees annual leave entitlements will accrue progressively, and accumulate year on year.

•  The Applicant provides that they will perform comparative calculations to ensure employees are better off overall than as if they were paid under the applicable Modern Award. Where an employee is found not to be better off overall, they will be paid the amount they would be entitled to under the Award plus 3% of the differential amount.

•  Casual employees will be engaged for a minimum of 2 consecutive hours on each occasion they are required to work.

•  The Applicant provides an ‘on-call’ and ‘call-out’ regime which sets employee expectations, and limits on the hours an employee is required to be on-call.

•  The Applicant provides an amended definition of ‘shift worker’ which accords with the NES.

•  The Applicant provides that employees required to work overtime will, wherever reasonably practicable, be provided with 10 consecutive hours off duty in each 24 consecutive hour block.

•  The Applicant requires that employees, other than those on a structured on-call roster, have a rest period of 10 consecutive hours off duty, without a loss of pay until recommencing work.

[5] A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded did not object to 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] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the “Australian Manufacturing Workers’ Union” (AMWU), and The Australian Workers’ Union (AWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[9] 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.

[10] 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 31 March 2022.

COMMISSIONER

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