Allied Mills Pty Ltd

[2016] FWCA 110

[2016] FWCA 110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Allied Mills Pty Ltd
(AG2015/6717)

ALLIED MILLS (YATALA) AND THE NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2015 - 2017

Food, beverages and tobacco manufacturing industry
COMMISSIONER GREGORY	MELBOURNE, 6 JANUARY 2016

Application for approval of the Allied Mills (Yatala) and the National Union of Workers Enterprise Agreement 2015-2017.

[1] An application has been made for approval of a single enterprise agreement known as the Allied Mills (Yatala) and the National Union of Workers Enterprise Agreement 2015-2017. The application is made under s.185 of the Fair Work Act 2009 (the Act).

[2] After reviewing the application and the terms and conditions contained in the proposed Agreement the Commission sought further clarification about some aspects of the Agreement. These concerned, in particular, the proposed conditions to be provided for trainees, the entitlements associated with the evening shift, and the provisions to apply to part-time employees. The legal representatives acting on behalf of the Applicant subsequently requested that the matter be set down for hearing to enable further submissions to be provided in support of the application. The application was accordingly listed for hearing on 17 December 2015.

[3] The hearing was conducted by telephone. Mr Benjamin Gee from the FCB Group was granted leave to appear on behalf the Applicant under s.596(2)(a). Mr Adam Portelli appeared for the National Union of Workers (“NUW”), who are a bargaining representative for the Agreement. An outline of submissions and a witness statement from Mr Martin Telling, who is the Applicant’s Group Human Resources Manager, was also provided in advance of the hearing by the Applicant’s representative.

[4] It is also noted that the Employer’s Statutory Declaration, filed in conjunction with the application, contains a detailed assessment of those terms in the Agreement that are considered by the Applicant to be more beneficial than those contained in the underlying the Food, Beverages and Tobacco Manufacturing Award 2010, as well as those considered to be less beneficial. It also indicates that almost all employees to be covered by the proposed Agreement participated in the vote to approve the Agreement, with an overwhelming majority voting in favour. The NUW also provided an F18 Statutory Declaration confirming it agreed with the Employer’s Statutory Declaration and wants to be covered by the proposed Agreement.

[5] The Applicant’s principal position is that the terms and conditions contained in the Agreement satisfy the requirements of the better off overall test, although it acknowledges that the process of assessment is “finely balanced.” It also submits that the Applicant is prepared to provide an undertaking to deal with the issue raised by the Commission about the engagement of trainees, even though it does not now employ any trainees. An undertaking in the terms proposed has subsequently been provided.

[6] The Applicant also submits in the alternative that if the Commission is not satisfied the Agreement meets the requirements of the better off overall test the Commission should exercise the discretion available to it under s.189 of the Act to approve the Agreement because of the existence of “exceptional circumstances,” and the fact that the exercise of this discretion would not be contrary to the public interest.

[7] As indicated already, the Applicant has already responded to the issues raised by the Commission about the engagement of trainees. The issues to do with night shift work go to the difference in the relevant night shift penalties in the underlying Award and the proposed Agreement, which suggest that such employees working these shifts could be marginally worse off under the terms of the proposed Agreement. However, it is also noted in this context that the Agreement provides for wage rates at each classification level that are at least 7% in excess of those contained in the underlying Award, and also provides for wage increases of 2.5% each year during the life of the Agreement.

[8] The Applicant’s submissions also indicate that a rotating roster with an associated lower shift penalty rate could be utilised, but the clear preference of the employees to be covered by the proposed Agreement is for the current fixed roster arrangements to remain in place. The NUW also indicated in its submissions that this was also its understanding about the employees preferred arrangements to do with this roster.

[9] The Applicant submits in response to the issues raised about the part-time employment conditions that the terms now contained in clause 7.1 and clause 14 of the existing Agreement that covers the parties, approved by Deputy President Laurence in a decision handed down on 8 August 2013, are the same as those now contained in the proposed Agreement that is the subject of the present application.

[10] The NUW again indicated in its submissions that it was not aware of any issues raised by the employees in regard to the part-time employment conditions, and these had not been at issue in the negotiations leading to the making of the proposed Agreement.

[11] I have accepted the undertaking to do with the employment of trainees as attached to this decision which has been given by the employer.

[12] I am satisfied, in conclusion, that the Agreement meets the requirements of the better off overall test when compared to the terms and conditions contained in the underlying Food, Beverages and Tobacco Manufacturing Award 2010. I am also satisfied that each of the requirements in ss.186, 187, 188 and s.190 as are otherwise relevant to this application for approval have been met. As indicated already the NUW, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I accordingly note that the Agreement also covers the organisation.

[13] The Agreement is approved and in accordance with s.54(1) will operate from 13 January 2016. The nominal expiry date of the Agreement is 30 September 2017.

COMMISSIONER

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