Americold Logistics Limited
[2024] FWCA 3869
•5 NOVEMBER 2024
| [2024] FWCA 3869 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Americold Logistics Limited
(AG2024/3843)
AMERICOLD MURARRIE ENTERPRISE AGREEMENT 2024
| Storage services and wholesale industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 5 NOVEMBER 2024 |
Application for approval of the Americold Murarrie Enterprise Agreement 2024
Introduction
Americold Logistics Limited (the Employer) has made an application for approval of an enterprise agreement known as the Americold Murarrie Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Storage Services and Wholesale Award 2020 (the Award).
Deductions
Clause 7.4.4 of the Agreement allows for wages to be deducted where there is damage or loss of protective clothing. This appears to allow a deduction without the agreement of the employee. The Award does not provide for such a deduction. The deduction may have no effect because of s.326 of the Act.
Casual Overtime
Clause 4.2.4 of the Agreement provides that the casual loading will not be paid on overtime whereas the Award does not provide such a restriction. While this does not appear to be a concern for most employees, a Grade 1 employee who works 3 or more hours of overtime does not appear to be better off overall given the lower casual loading and less beneficial overtime provisions.
The Employer submitted that it has not employed casual employees directly since 2019. The Grade 1 classification is not used for any employees of Americold. It is intended to be used as a baseline for third party labour hire providers. Since no casuals have been directly employed for over five years, the Employer argues that casual employment should reasonably be excluded from the BOOT assessment. The UWU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ a casual employee during the life of this Agreement.
Redundancy Payments
Clause 2.3.6 of the Agreement provides for 3.6 weeks’ redundancy pay per year of completed service. This is inconsistent with s. 119(2) of the Act, which provides that employees who have worked at least 1 year but less than 2 years are entitled to 4 weeks redundancy pay. I note that in accordance with the NES precedence term in clause 1.3.4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:
Clause 4.1.1(c) of the Agreement provides that a day shift is between 4.30am-6.30pm whereas clause 13.1(b) of the Award provides that the span of ordinary working hours to be between 7am-5.30pm, which can be moved up to one hour forward or one hour back by agreement (clause 13.2(a)). The effect of this is that some employees may work hours under the Agreement that are not considered overtime, whereas under the Award these hours would be considered overtime.
Under clause 20.1 of the Award, an early morning shift means a shift commencing between 2.00 am and 7.00 am. The Agreement does not provide for an early morning shift, albeit the ordinary hours of work commence at 4.30am, as noted above. The effect of this is that some employees may work hours under the Agreement which do not attract a shift penalty, whereas they would under the Award.
Clause 3.5.1 of the Agreement provides a night shift penalty to be 17.5% of the base rate, whereas clause 20.4(c) of the Award provides a night shift penalty to be 130%.
Clause 3.6.2 of the Agreement provides that the penalty rate for all ordinary time worked on a Sunday is 175%, whereas clause 22.2 of the Award provide the Sunday penalty is 200%. This reduction seems to be a concern specifically for Grade 1 casual employees working Sunday shifts exclusively during ordinary hours.
It is noted that the 75% additional penalty for working on a Sunday under clause 3.6.2 of the Agreement will only apply during ordinary time. As such, clause 4.2.1 of the Agreement provides that all overtime for full time day workers will be paid at the rate of 150% for the first 3 hours and 200% thereafter. However, clause 22.2(a) of the Award provides that Sunday overtime will be paid at 200%.
In response to these issues, the Employer stated that Americold does not directly employ any Grade 1 employees, as this classification is used solely by third-party labour hire providers. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ a Grade 1 employee during the life of this Agreement.
Additionally, the Employer submitted that employees in classifications above Grade 1 receive sufficiently high rates, making them better off overall compared to the Award.
Sections 186, 187, 188 and 190
I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The United Workers Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.
In accordance with s.201(2), I note that the Agreement covers the UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 November 2024. The nominal expiry date of the Agreement is 31 October 2028.
DEPUTY PRESIDENT
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