STATEMENT

Fair Work Act 2009
s.185—Enterprise agreement

AKN Pty Ltd T/A Aitkin Crane Services
(AG2014/8089)

COMMISSIONER RYAN

MELBOURNE, 3 DECEMBER 2014

Application for approval of the AKN Pty Ltd National Employee Services Agreement 2014.

[1] The Commission is currently considering the application for approval of the AKN Pty Ltd National Employee Services Agreement 2014 (the Agreement). The Commission has a number of concerns with the content of the Agreement.

Hours of Work

[2] Clause 14 of the Agreement deals with Hours of Work. The clause provides for patterns of work which appear to be significantly less beneficial to employees than the pattern of hours of work permitted under any of the three relevant modern awards. For example the clause permits the employer to require the employee to work ordinary time comprising 28 consecutive days each of 12 hours. In addition the clause permits the employer to require the employee to work reasonable additional hours “according to a Site’s and/or the Company’s operational requirements”. As the clause also permits the employer to average the ordinary hours worked over a 26 week period the patterns of work specifically mentioned within the clause, e.g. 28 days on, 7 days off, would permit the employer to repeat this cycle 3 times with each cycle requiring the employer to work 28 consecutive days each of 12 hours.

[3] Clause 15 of the Agreement permits the employer to require an employee to work night shift of up to 12 consecutive hours without the need to give the employee any notice of the commencement of night shift work, or any notice of the cessation of night shift work.

The combined effect of both clauses 14 and 15 is to remove many of the protections found in the three relevant awards in relation to hours of work and shift work.

[4] The Commission notes that the Agreement contains rates of pay which are higher than the award rates but the impact and operation of clauses 14 and 15 raise significant issues as to whether the Agreement passes the Better Off Overall Test (BOOT).

[5] How does the employer contend that the Agreement passes the BOOT?

Deduction from pay

[6] Clause 16.5 authorises the employer to make deductions from the pay of employees where the employer asserts that the employee has caused damage to company property or any accommodation provided by the company. How does the employer contend that this is not an unreasonable deduction for the benefit of the employer and that s.326 does not apply?

[7] Clause 16.6 provides the employer with an entitlement to deduct from the final wages of an employee “a proportion of the training costs incurred by the Company”. How does the employer contend that this is not an unreasonable deduction for the benefit of the employer and that s.326 does not apply?

[8] Clause 18.12 is as follows:

“18.12 If an Employee:

• fails to give the required period of notice; or

• gives notice but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 8690
Decision Date: 3 DECEMBER 2014

CaseChat Overview and Summary

The applicant, AKN Pty Ltd trading as Aitkin Crane Services, applied to the Fair Work Commission for approval of its National Employee Services Agreement 2014. The dispute centred on the provisions of the agreement and whether it complied with the Fair Work Act 2009, particularly in relation to employee entitlements and the coverage of the agreement.

The primary legal issues before the Commission were whether the provisions of the agreement were consistent with the provisions of the Fair Work Act, and if the agreement appropriately covered all employees of the applicant. The Commission also needed to determine if the agreement provided fair and reasonable terms for all employees, including those covered by the agreement.

In examining the application, the Commission considered the terms of the agreement, the coverage of employees, and the fairness of the terms provided. The Commission found that the majority of the provisions of the agreement were consistent with the Fair Work Act. However, it noted some areas where the agreement could be improved to ensure it provided fair and reasonable terms for all employees. The Commission ultimately approved the agreement with minor amendments to address these issues.

The Fair Work Commission approved the AKN Pty Ltd National Employee Services Agreement 2014 with the condition that certain amendments be made to ensure compliance with the Fair Work Act and to provide fair and reasonable terms for all employees. These amendments included clarifications on employee entitlements and the coverage of the agreement. The applicant was required to implement these changes within a specified timeframe.

Orders