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[2012] FWAA 2877

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

Protech Holdings Pty Ltd(AG2012/661)

PROTECH ON-HIRE EMPLOYEE AGREEMENT 2012

Miscellaneous

COMMISSIONER CAMBRIDGE SYDNEY, 3 APRIL 2012

Application for approval of the Protech On-Hire Employee Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the PROTECH On-Hire Employee Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Protech Holdings Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 6 March 2012 by the Employer’s representatives, IRIQ Pty Ltd (IRIQ). The application included a Statutory Declaration of Marc Meili made on behalf of the Employer and mistakenly dated 15 March 2013[sic], (the Declaration). The Declaration stated that the Agreement was made on 22 February 2012. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing before Fair Work Australia (FWA) on 28 March 2012 at which time Ms T Moltoni from IRIQ appeared for the Employer. During the proceeding held on 28 March, FWA identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Ms Moltoni provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by FWA and to respond in writing. FWA received correspondence dated 29 March 2012, from IRIQ, which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to FWA pursuant to s.190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before FWA can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further

[2012] FWAA 2877

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material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 17 and a consultation term at clause 16.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approvalhave been met.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 10 April 2012. In accordance with subsection 186 (5) (b) of the Act the nominal expiry date of the Agreement is 3 April 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code C, AE892923 PR522032>

[2012] FWAA 2877

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Undertakings:

>protech Worll/<l9 Recruftmel1/

Protech On-Hire

Employee Agreement 2012

• -

Titl e

This wi ll be caied Ihe PROTECH On-Hire Employee Agreement 2012 (Ihe Ag reemenl ).

2. Parties

This Ag reemenl wi. apply 10:

a. PROTECH HoldOngs Ply Lid (ACN 147 644 399) and ils sub5,dianes (I~e Company); and

b. All On-Hire employees who are employed by the Company.

3. Durati on

This Agreemenl commences operation 7 days alter approva l by Fair WorI< Australia. The nom,na; e.~ date wil be 4 years from lhe dale of operation.

4. Application

a. Thi. A9reement applies to and is binding on the Company in relalion to all of its Ort-Hire Employees employed in all 01 ils operalions within Australia

5. Scope and Inlent

a. This Agreemenl incorporates tile relevant Modem Award (and any other prior relevant Award) thai woufd otherwise apply 10 you. The relevant Modem Awa rd (and any other prior relevant Award) is to be ,ead arid applied in conjuoctioo with the lerms and conditions in this Ag reement. To the extenl thai the'e is any inconsistency. the Agreement shalt prevail.

b. In Ihe event that no Modern Award (and any other pOOr "'''vant Awa rd ) " xislS 10 COVe<" a particular assignment, the terms and conditions 01 employment wi ll be governed by this Ayteement. together with lhe rele"em legislation (inclusive of the National Emi>lol"""nt Standard.) thai would olherwise apply.

C. The rates of pay. le<"ms and conditions in this Agreemenl represent the rninOmum that wilt be pa<llo you . The Company wi ll assess the merkel condilions and may pay you a I-Oqher rale 01 payor more allractive terms wIlere ~ is able 10 negol late Ihis wilh the Client. Given the nalure of !he on_hire work. any increase above the minimums may vary from assignment 10 assignment and wil be entirely at the discretion of \he Company.

a . Whe,e II ,*"anl Award. in aeeortIar.ce willi CI;.to.r5e 5 (I ), c:onlains Chual COIl""'"'" provl. ion. Ihat ' eqlll!"e !he CCOl\Ierslon af Cas ua l emplo)'eH la Permanenl Ful Of P3,H ime Emplo)'e~. regardless aI !he Circumstances. fOO' !he purposes of this Ag,eemenl !hose proyislons"';~ hal/e no elled 00 you.

In order 10 compensa\e you fOO' Ihe lou C>f casual conversion rights. an additional 1% eal"" loading will be PIIid al weh 1m. .. the C;woal eonversion Cif ."y) WC>lJId hal/e o~ a~>IIhtd but fC>l" Ihis ~reemenl.

b. Whe<e II r ..... val'll Award, ., ac:eordionce ..... Clause 5 I.), does not provide for Casual EmpIo)men1. the ~ provisic)rlI \WIll apply.

I. A Casual On-Hire Em ployee ~ one engaged and paOd 8S such.

i . A Casual On-Hire Employee will be pa;d the hoI.riy 'ate ()! pay far the releval'll classiticatioo in 3dditioo 10 a loading 01 25% calculated on the base , ale 01 pay.

Ii . Casual lCIading is paid in j;eu 01 eob~ts which do no! apply 10 casual employees. ha"';ng regard far the National Emplovmenl Standards.

ill. The m""""" engegemenl far a Cawal Qn.ffire E~ will be lou" houn; on all)' one day that you .... e req .. ed to_.

1 . Oa fini1 lon.

8. Additian.' Claims

The parties wi no!, dunng the Iefm 01 thr$ Agreement, P'Jf$UO" a ny fur\hct claims ebaul .my mal18r which per1iIins 10 the ~nI ,eIalionship.

• . II is Imponant !hal you follClw aI tawlul and reasonable di" .. ;tJon. thai are .,.,.;uw, )'0\.0" abil~y. given by their leadiog t-landiSupervi$of. or any othe< appropriate pe<aOI'\. H nomIr\ated by the Company ar Client. ShoWd you noll be eble 10 perform the ass.gned .av. lor all)' '''lIOn wilat _ _ . ~ is)'O\.O" duty to inform your leading H~upeMsor ar other appropriale person immed~lely.

b. Refuul lei comply with any lawful .rod reasanable djrllCticln may result In dilc:ipjinary actiQn. wIlItI> may IrIc'.Ide the lennination 01 your employmenl.

10. S~'tly..,.;l FUoau for WOf1c

a. We .... commiCIed 10 undertalling ow besl endl!avcxn 10 1M establi$hme~ of healhy and aafe workpla<:e5, which Includes 1M lIM 01 heellhy and safe wonc me!hoM. impairmenl lesl"'9 (both planned and rllodom~ wonc organis.lliion. working lime, machi'le<y and equipmenl

b. You wiI ~ be s lOwed 10 enl.,.. or .ng~a in wonc on II s lla or woncplace ~ )'QU are. or "'" rnsonably suspected 10 be, undet 1M Inn~nce 0/, 01 affecled by. alcohol or drugs.

c. T~e Company Of len operale. in Industrie, Ihllt CIIrry significanl safely riskl. You, heallh and we" being is an e8sen~al elemMI of Ihe ou r success. MY breaches of obIigIIllonl in relalion 10 Wor1<plilCO Heallh and Safety may be o;.onlide.ed en",,! and may .elull in o;.onslderatOon being g~n to dllClpl'r>ary action ..nocn may ~lIde lenninatioo of employment.

d. you .... be 'equired 10 wea •• alavanl W E I I all limes as diradad arwJ/o6 as raqI.Wed . Ycu cIoIIwlg wiI be of a standard and nature as deemed .alevaM lind appropriate by lhe Comj)aO)l.

,,. Dispule . al Wort<

• . Tha falowing dispule , esoIuiiorl p<ocedUfl wig awtY ~e II dis,,",lle arises in .elation 10 a matlt'f aRsing under the Ag.eeme~ or 1M National Employment Standard • .

b. You wiI need 10 fTsl meel and confer with)'OW' lOcal Protech Manag81

c. If the matte r is ~ .... oIIied lit such II meeling the parties wiH arr8r\{l1 lut1her diSCUssions in'o'Olving morn senklr mMagament as IIpptopnele.

d, If the matter rem ains unres<>ved. lhe Company will refer the mall.,.. to Its most Senior Milnegel' WIlO will allempt to resolve the man ... wilhin '4 days or longer as agreed by the partiel.

e. In 1M even! of the maller remaining lMIf'8so1vod. eithe' pany may ref'" the maMer 10 Fair Woo. Australia_

l Fair Wor1c Aus.tralia .... y .. lsi to settle Ihe dispule th.-ough cooc:iiation andIor mediation (but nr)I arbiIration)

i. Shot*! ~ remain ..... ewIYed. lhe Ccrnpany will apP<lO'lt an Oo\dependenl Ihin:I par1y. which may be Fair Work Auslralia. who 11M 1M capacity 10 MlIII8!he dispute through arbitrat""' . "I wt.d1 II *"ion wiI be bonding on the paille • .

f. Until the mattllf in d,spule is determined. the ltalus QlOO wi! pre.ail _ lIMo netO\I cI lhe Wlines-s will rem,.n a priority neape in l itu atOOM whe,e there ls an immediate and algnilicant threat to Ihe health and ",fely of yourseK or ethel-s.

II. At any $lage of th is Drspute RuokJtN)n Prcw;edure, you may appojrll 8 re present&tflle. IncllIdlng another ()n.Hire Employee Of any other person. to act as your repre$\lntative In an attempt 10 'chieve re$<llo.rtion.

• . At 1he comrnenc:emen1 01 Nch 8Iilgr>fftln1 )'QU .... ~ II nohCe of otter tmll will o;onfitm 1M del30ls 01 your assognmenl Induding rem.merat.", (together MIll any Mariee1 Arrangement tmlt may apply in accordance WIIh Clause 13.b). d~. onltlal no..-. 01 work ...., • gUIde 10 the duration of the particular awgnmenl. This wiI be based 0fI the needs fA the c;ient , h should be noIed llul the nalure 01 0fI hire wonc is such thai the assignment may be _led or lennin;lted at any ,irrnI_ the Company will advIM you of these chang ..... -. I' possible.

b. Your dass~""'tion for each as.ignment will be based on skits required for IhI parlieuIa< role and not skils Of q..alifoe&lions)'OU may possess .

C. Your assigrvnents iIS iIIl on-hire ernpIo'J'ee meilll N from bme 10 bme you will b8 placed on 8Iaigroment 10 prooAde sel'llices lor 1he b8 .... fiI. 0( clients 01 the Company. wi1h each shift CO<\Strlu!ing a discrete period of emplOyment

d. The Company 60es not eonlmt 1he 1etrg1h of a"Y assignment _ whMe the Company may indir:;;ate the PQ1enllal lrlnglh 01 an auignmenl in good faith. !he dient may vary the IItnglh 01 the 8I1~nm&nt 01 terminate your alleodance at It9 ablOlute discretion. Wh8l'1 this occun, we ...... undertake our best endeaVOUr! to offer you alternate Dss~nments. where they are appropriate.

e. Where _ ha.... been unable 10 oller \IOU an altematiw assigf\melll. deSj)ile 01.0' best eodeawura. _ fesetVe 01.0' flghllO discontinue I'OU" em~.

f. Where 1he llOI~ion offered I ... C8s.ual pos ition;

13. Wag ..

I. You will be no!ified wIIhin rni,.umum one (1) I'ocu 01 !he 11311 0( I'OU" SlliII. If !here is a cancelalion 01 chIIng.e to your shrfl slalt tune.

i . Should \IOU nee b8 able to maIIe your sNfl)'Oll must make every rel'SOllilbie effon to notify I'OU" PROTECH eontact prior 10 !he scheduled SIi>f1 0I1'OU" shift. so !hey are able 10 make 0Ihe< arrangements_

Pil)omenl of wages shill be by direc;l deposi1lele<:tronic fuflds transfer on a weekly or fortnightly basis 10 a ba<1k account nominated by you. Where a public holiday 01 __ end falls on the nonnal pay day. the pw,a>enl ,hal be ma6e as is pr;octic.;IbIe ette< the normal pay day.

b. Martet Arrangements

Where you ate placed on an assignment where ~ is nocessary for us 10 pay you in excesl 01 the ...-ages Of allowances ... lIIis Agreement. !his arrangement .... be received bV you ... salisfadion 01 any and/Of all enliliements. lenni. coOOitiont, penallie. and allowances whir;;h might otilerwise a Pll ly to you uncler this Agreement. This may inGluoo (OOt is no! lirnired to) Ibl Of roIed up hou~y rates. Please be as&ured that the total P3)'111eJlt to you"';~ not be less than you would have receiYed ....,...It\is Agr"""""'t.

14. Sup*rannuation

The Company ";1 oomply wi1h all ralevanl IUpe<annuabon IegisIaobon . Cont~OOtions can be made 10 either RtoCIUitment Supe< Of C8US. Contribubons to ......,. other fund. wiI be by mulUlli sgr"""' .... b8_n the parties. Proledl may 811er rI$ ""'auh 'und in the futur~.

15. Cllhlng aul 0< la king 0' ~Id AIInl.lall.av.

Where an employe. lICXnIes iIIlllUilliea ..... subjecltO the requirements of the F a~ Work Act 2009 (Of iIs successor):

a. All employee may request !he casting out of accrued IMve wtW;/Ilhe Company may ~ at ~s dis.cteIion: and'or

b. The Company may feqUIre an employee to lake annua l lMve.

PrOIed\ OIl-.Mire E~ Agroe""",' 20 t 2 Page 5

It. Consultalion

a. Tt.s Iefm applies if

L !he employer has millie a def",fte decision to introdlJCCl a major eI1&ngII 10 ~oduc:tion, Pfogram. organ~lIon, struc:lUre. or tecl\r\ology In reLltion 10 Ms enterprise : end

ii. Ihe change is ikely to liMe a slgn~k:anl etrect on employeu ol lhe enterprise .

\), The employer mUSI notify tha relevan l employees of the dedsion 10 introduce Ihe major ,"""", .

c. The relevant employlln may aPl>Oin1 a representative for !he porposes 01 the ~re5 on \Ius 18rm.

d. If'

t. a relevant employM 8j)pOints. or relev3rll employee~ appoont. , rePfesenlative ""' \he purpos.es of consutuMlon. and

i. !he e~ or employees ad_ \he ~ of the IIIentify of !he tepresencalMl.

ii. !he "",pial"'" must recognise !he 'ep'8SentalWe.

e, AS soon as pracliclobio! ane, makiog Rs oocision, lhe employe< mU$l:

i. disc<JSs with tIM! ,elevanl employees:

I. Ihe inlroduction 01 the Ch.8nge; and

2. Ihe elfo>ct the change Is likely 10 h .... e on too employees: and

3. measu,e, lhe employe r is laking to ;WM or miligala lhe aMllIe effect 01 the change on !he employees: and

i . 10< the porposes 01 lhe discusloion _ provide. in ....,.;ting. 10 Ihe rel8vant amployees:

I . al relev8rlt inlormation about the ch3J1ge including the nature 01 !he d1&nge proposed: and

2. ",Ionnation 8bouI!he expected elJecls of tile cIIange on !he employees: and

3. any ohIr mallelS lilteIV to affect the employees.

f. Howe_.!he employer is I'IOC .~ 10 discID!.e conlidential or ~ sensitive informa1iorl1O the relevanl employees.

g. The employe+' must gMI prampt and geroHne OOOSIderation 10 manelll r.1Sed about the major d1ange by the relellanl amployH •.

h. ~ a lerm In the enterpriH a(1eem<!1nt provides for a major change 10 production, program. organisa tion. structure or tK llnoIc>gy in relatIOn to the enlerprlse 01 the employer. the reQuirements set out in subclause, I$(b). lS(c) Bnd 1S(e) are lake" not 10 apply.

I, In lIIis term, a major changll is lI~efy to have a slgnlfl~anl. If"'" on employee. ~ it ,,,,,vlts In:

i. the t",miMt"'" 01 the employm",,1 01 employees: or

Ii. map- change to !he compeJoSiIion, Operation or $jze 01 !he empqoe.·, lOOtI<force or 10 \he skills ~ed 01 employee,. or

Ii. \he e~1on 01 diminuI.cIn 01 jotl opportun.ies Concluding OJIPO'\Ur1itIH for promotoon or lenure); or

iv. the aIle<alion 01 hours 01 work; or

v. the naed 10 "'!rain ernpIo',oees: or

.. . the naed to ,eIocale employees 10 anoct\er workplace. or

w'. the restructuring of jobs .

j. In this term, rel .... a'" emplo)'N. means Ih. emplo)'ees ....... may be alleel"" by the maior change,

17. f ,.. ibil ity

(II An emplOyer and emplO)"Ie covered by th~ ente<pri ... agreemeflt may agree to make an individlJ.ll l ne.iI)irny .,r8l1gemenllo vary tha ailed 01 terms 0I1he agreement~'

(I) the agreement dea ls with 1 00- mo<a 0I1he loIklwir>g mane .. :

(i) ... engemenlS about wilen work is peofonned. (i) oYertol1e taln; (ii) penally taleS; (ill) ~nces; M leave loading, and

(b) the arrangement m .... 1S Ihe gerl<!i"", "",eels 01 the employer and employee in reLation 10 1 or more ol lhe maners mentioned in paragraph (a); and

(e) the &n'angement is ge"""""ly agreed 10 by U'e emplOyer and emploY"".

(2) The employer muSl ensure ihat the le,,"s of Ihe indIYiduallle.ibiIiIy arra~t:

(e) 8Ie 8bouI pennit1ed matt~ unr:Ief $edion 172 01 the fail WoO< Act 2009; and

(b) 8Ie no1 uNawfullerms under section 1!14 01 the FairWorit Act 2009; and

(e) resoh in lhe employee Deing better off ove,aIi than lhe employee would De if no .rr8ngGmenl wa. made_

(3) The employer must ensure thai the in<!ividuaillexibi ily arrangement:

(, ) is in writing; and

(b) includes the name 01 the employer _ employee; and

Ie) is signed by the employer and employee and ij the employee is under 18 yeatS 01 age. signed by a J>3<enl 00- guardLan 01 tile employe<!; end

(d) WOO" details of:

(I) the t...-mS 01 the antarpnse agreement Ih81 will 0. varied by the err~ment: and

(ii) how the 3fTaf1Q8lTl6r1t wi. vary the elled 01 the lenni: and (ii) how the employee will be betll!f all ovetall in relation 10 !he terms and

condilions 01 his 01 her amploymenlas a red 0I1he ... /lllgllmenl; and

(41 The employer must give the employee 8 copy oItha Inctividual flexibility arrengement "';1hIn 14 daY' after It II agreed to.

(5) The employer Of employee may lenninata In., WldMdual nexibjl~y arrangement:

(a) by giving no mo<e than 28 dol.,... written notoce 10 the 0Ihet patty 10 the 8rr~.

~

(b) ~ the...,~ and employM agr" in wriI.ng - 81 any time.

18. Signatories

The partieS recognise thaI each has a responsibi lity 10 enSure Ihe successfu l operation 01 ttU5 Agreement. The signatures below testify the fact that the Agreement has been approved by Ihe employees who will be co_ered by the Agreement in accordaoce with the Fai r WOIi< Act 2009.

Signed for and on behalf of Prolech Holdings Ply LId by;

Marc MEIU

"Y Signature

Address JI;;'(,4 pcw6c H"j' sr.:j v-l cxx l G Lj l,xl

Position' Managing Director

Date JI.o i J. 121-0 I i).

Q 4r:1.7

Signed for and on beha" of the employees of Prolech Holdings Ply LId by:

Printed Name Af,Co/~ HD vU'k6.. , ...... (l

Signature e.LiI <W~~-.y:' Address n Ur.:, "- I)M ..... t.. H ""'''- ..... 1:. " z.. '-I7 "t4

Position· Employee signing on behalf of the Employees covered by th is agreement

Date 2,12 / 20,L. . ,

W~nessName ~\1':061t. \-t~J~/lAA.-....f" Signature _____ -:-,l...,,~_

~ .,........, /l.-A.--- bi'lt-l Add ress 16 ..nA....t

Dale lh(1-/'V>, ....

Commissioner Cambridge Fair Work Australia Terrace Tower 80 William Street East Sydney

28 March 2012

Dear Commissioner Cambridge,

Re: AG2012/661

Thankyou for your advice in Hearing on Wednesday 28 March in relation to our application for Agreement Approval (AG2012/661), the Protech On-Hire Emp/oyeeAgreement 2012.

As discussed, we hereby give the following undertakings:

1. Protech Holdings Pty Ltd and its subsidiaries, undertakes to insert the following statement at the end of clause 15 of the Agreement:

"Where a request for the cashing out of annual/eave is approved by the employer, the terms will be subject to those specified at 593(2) of the Fair Work Act, namely that:

(a) paid annual leave must not be cashed out if the cashing out would result in the employee's remaining accrued entitlement to paid annual leave being less than 4 weeks; and

(b) each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and

(c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Yours faithfully,

Marc Meili

Managing Director

Protech Holdings Pty Ltd

.. /~L: ............ . Witness Signature

"-< .... : ~ .... j • ~ I " .......... .-

. .. v.?~:.: .. J.. ~ ... Ii?: ........ .. . Date