AKN Pty Ltd T/A Aitkin Crane Services

[2015] FWCA 3150

[2015] FWCA 3150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

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

AKN PTY LTD NATIONAL EMPLOYEE SERVICES AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 8 MAY 2015

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

[1] On 5 November 2014, AKN Pty Ltd T/A Aitkin Crane Services (AKN) applied for approval of an enterprise agreement known as the AKN Pty Ltd National Employee Services Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] For reasons given in a decision of 7 January 2015,¹ Commissioner Ryan refused to approve the Agreement. That decision was appealed by AKN. Having identified error in two respects, a Full Bench in a decision of 15 April 2015² upheld the appeal, quashed the decision and remitted the application for approval of the Agreement to me for re-hearing.

[3] After reviewing the file, I wrote to the representatives of AKN on 15 April 2015, raising a number of concerns about approval of the Agreement, including most of the concerns raised by Commissioner Ryan at first instance.

[4] The concerns were raised in the context whereby the initial forms lodged by AKN proceeded on the incorrect identification of one of the three relevant reference instruments and that AKN had not fully identified more and less beneficial terms of the Agreement against the relevant reference instruments.

[5] AKN, through its representative, responded comprehensively to the concerns raised by me. It provided evidence from its Human Resources Manager – Mr J Mitchell addressing my concerns, setting out the operational context of the Agreement and attaching various information, including:

● the composition of the workforce;

● a spreadsheet containing a comprehensive and complete identification of more and less beneficial Agreement terms and conditions in respect of each reference instrument and information as to the practical application of the Agreement terms;

● a comparative schedule of various Awards and the Agreement allowances and their practical application within its business; and

● comparative spreadsheets setting out for various working arrangements, the remuneration including classification rates, allowances, overtime payments, penalty payments, shift loading leave accruals and superannuation under the Agreement and each relevant Award.

[6] The material addressed concerns raised by me about particular less beneficial conditions on the basis that, as a matter of practice and intent, AKN did not intend the Agreement to apply in a manner which resulted in less advantageous terms and conditions in respect of those matters. In respect of such matters, AKN provided undertakings that are consistent with its practice and intent that the relevant Agreement terms would not apply to those employees who would be disadvantaged by their application.

[7] I also raised concerns with AKN that went to the statutory requirement for approval of the Agreement, in s.186(2)(d) of the Act that the Agreement passes the better off overall test (BOOT). In that regard, s.193(1) of the Act provides:

“An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[8] I am not satisfied on the basis of its Agreement terms in themselves that the Agreement passes the BOOT. However, AKN has addressed the major less beneficial terms and conditions to my satisfaction by way of undertakings. Some less substantive and less favourable Agreement terms, as set out in the spreadsheet containing a comprehensive and complete identification of more and less beneficial Agreement terms and conditions, were not subject to undertakings. However, having regard to the comparative spreadsheets setting out the various working arrangements for the total remuneration under the Agreement and the relevant awards, reflecting substantially higher classification rates in the Agreement and the marginal practical impact of some other provisions not reflected in the comparison or the undertakings, I am satisfied that, subject to the undertakings provided by AKN, the Agreement passes the BOOT.

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

[10] Accordingly, I will approve the Agreement, subject to the undertakings by AKN, which are attached to this decision.

[11] The Agreement is approved, subject to the undertakings, and, in accordance with s.54, will operate from 15 May 2015. The nominal expiry date of the Agreement is 7 May 2019.

SENIOR DEPUTY PRESIDENT

ATTACHMENT

1 [2015] FWC 105.

2 [2015] FWCFB 1833.

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