1
Fair Work Act 2009
s.185—Enterprise agreement
John Holland Pty Ltd T/A Territoria Civil
(AG2017/5497)
TERRITORIA COLLECTIVE AGREEMENT 2017
Northern Territory
COMMISSIONER MCKINNON MELBOURNE, 9 MAY 2018
Application for approval of the Territoria Collective Agreement 2017.
[1] John Holland Pty Ltd T/A Territoria Civil (John Holland) has applied for approval of a
single-enterprise agreement known as the Territoria Collective Agreement 2017 (the
Agreement).
[2] On 4 April 2018 I issued an interim decision setting out my preliminary findings in
relation to the Agreement.1 The matter was listed for hearing on 23 April 2018 to deal with:
whether the terms of the Agreement, and the effect of those terms, were explained to
employees; and
any undertakings in relation to adult apprentice rates of pay, abandonment of
employment, redundancy pay, inclement weather entitlements and the effect of
agreement consultation terms on notice of shift changes.2
[3] John Holland filed written undertakings in accordance with directions issued by the
Commission on 13 April 2018. A copy of those undertakings is attached in Annexure A.
[4] For the reasons set out in my interim decision and further below, the Agreement will
be approved.
Adult apprentice rates of pay
[5] Apprentice rates of pay in the Agreement are generally above Award3 rates of pay by a
margin of 7.56% to 37.9%. However, rates of pay for first and second year adult apprentices
and rates of pay for third year adult apprentices working night shift appear are below the
1 John Holland Pty Ltd T/A Territoria Civil [2018] FWC 1947
2 Ibid, at [48].
3 Building and Construction General On-Site Award 2010 [MA000020]
[2018] FWCA 2442
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCA 2442
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Award. Undertakings have been given to address the concerns and no bargaining
representative has advised that they object to the undertakings provided.
Inclement Weather
[6] Clause 35 of the Agreement deals with inclement weather in a less comprehensive
way than clause 23 of the Award. An undertaking has been given to address the concern and
no bargaining representative for the Agreement has advised that they oppose the undertaking.
Abandonment of Employment
[7] A concern was raised that clause 44 of the Agreement may be less beneficial than the
National Employment Standards (NES) at section 117 to the extent that it excludes an
entitlement to notice of termination in circumstances where an employee is deemed to have
abandoned their employment if absent for more than 3 days.4 An undertaking has been given
to address the concern and no bargaining representative has advised that they oppose the
undertaking.
Redundancy
[8] Clause 46 of the Agreement adopts the definition of redundancy in the Act rather than
the Award. I was concerned about the effect of the term in relation to the better off overall
test.
[9] John Holland submitted that while the redundancy definition in the Agreement is
narrower than the Award, when the more beneficial terms of the Agreement, and in particular
higher rates of pay are taken into account, the Agreement passes the better off overall test.
[10] The submissions of John Holland were not challenged by bargaining representatives
for the Agreement. Having considered the matter further, on balance I am satisfied that
employees will be better off overall under the Agreement even though in some circumstances
the Agreement will be less beneficial in relation to redundancy compared to the Award.
Consultation
[11] I was concerned that clause 32 of the Agreement could operate to prevent consultation,
representation and/or consideration of matters raised by employees under clause 8 of the
Agreement in circumstances where only short notice of shift change was provided. An
undertaking has been given to address the concern and no objection to the undertaking has
been raised by any bargaining representative for the Agreement.
Explanation of the terms of the Agreement
[12] John Holland’s incomplete answer to question 3.5 of the Form F17 (accompanying the
application) gave rise to a concern about whether the Agreement and its effect was properly
explained to employees in the agreement making process.5
4 Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38
5 Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266; Construction, Forestry,
Mining and Energy Union v Shamrock Civil Pty Ltd [2018] FWCFB 1772
[2018] FWCA 2442
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[13] John Holland filed a witness statement of Trent Smith responding to the concern. 6 The
statement was not challenged. On the material before me, I am satisfied that the Agreement,
and the effect of the Agreement, was properly explained to employees and that there are no
other reasonable grounds for believing the Agreement was not genuinely agreed.
Conclusion
[14] I am satisfied that the undertakings given by John Holland will not cause financial
detriment to any employee covered by the Agreement and will not result in substantial
changes to the Agreement.
[15] Subject to the undertakings at Annexure A, I am also satisfied that each of the
requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have
now been met.
[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from
16 May 2018. The nominal expiry date of the Agreement is 30 April 2021.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
AE428192 PR606735
6 Exhibit 1
OF THE FAIR WORK OMMISSION AUSTRALIA THE SEAL
[2018] FWCA 2442
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Annexure A
John Holland 11 April 2018 John Holland Pty Ltd ABN 11 004 282 268 Level 5, 380 St. Kilda Road Commissioner Mackinnon Melbourne Victoria 3004 Fair Work Commission Australia 11 Exhibition Street GPO Box 199 Melbourne
Melbourne VIC 3000 Victoria 3001 Australia Telephone: 03 8698 9400 Facsimile: 03 9696 1873 Dear Commissioner, www.johnholland.com.au RE: Undertaking in the matter AG2017/5497 - Application for Approval of the Territoria Collective Agreement 2017 On behalf of John Holland Pty Ltd (Company), I hereby provide the following undertakings regarding the Territoria Collective Agreement 2017 (Agreement): 1) The Company undertakes that it will not include any classifications outside of the scope of the Building and Construction General On-site Award 2010. 2) The Company undertakes that the Company will ensure that the compliant fund for the purposes of superannuation choice will be one with a MySuper product. 3) The Company undertakes that adult apprentices will be paid at the relevant full rate of pay. 4) The Company undertakes that, in accordance with the National Employment Standards (NES),
5) The Company undertakes that employees will be paid all outstanding RDO accruals on termination at the ordinary rate of pay. 6) The Company undertakes that clause 32.1 shall operate subject to clause 8. 7) The Company undertakes that clause 44 will operate subject to the NES requirements. 8) The Company undertakes that employees will receive adequate wet weather gear when employees are required to work in inclement weather. Employees required to complete a concrete pour in inclement weather will be entitled to payment at double time for time worked completing the concrete pour. 9) The Company undertakes that clause 48.3 will not operate to exclude a safety-related dispute within the meaning of clause 48.1 where the safety-related matter is a matter arising under the Agreement or in relation to the NES. 10) The Company undertakes to average the ordinary hours of work of an employee over 4 weeks. 11) The Company undertakes that clause 52 operates except as otherwise provided by the Agreement, and subject to the NES.
We trust these undertakings resolve the Commission's concerns. Yours sincerely, Trent Smith Industrial Relations Manager, NSW/ACT/QLD/NT
