STATEMENT AND RECOMMENDATIONS

Fair Work Act 2009
s.739 - Application to deal with a dispute

B-d Farm Paris Creek Pty Ltd
v
Ian Johnson
(C2017/3411)

B-D FARM PARIS CREEK PTY LTD EMPLOYEE COLLECTIVE WORKPLACE AGREEMENT 2009
[AE874844]

Food, beverages and tobacco manufacturing industry
COMMISSIONER HAMPTON	ADELAIDE, 1 AUGUST 2017

Dispute – enterprise agreement past nominal expiry date – whether scheduled annual wage increases continue beyond the stated nominal life of agreement – parties have sought the views of the Commission – application of the agreement considered in context and when instrument is taken as a whole – earlier decision distinguished – assessment made – recommendations issued.

1. What this dispute is about

[1] B-d Farm Paris Creek Pty Ltd (the applicant employer) has applied for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (the FW Act) about the proper application of the B-d Farm Paris Creek Pty Ltd Employee Collective Workplace Agreement 2009 1 (the Agreement). In particular, the parties have competing contentions about the proper application of clause 12.3 of the Agreement.

[2] Clause 12.3 provides, in effect, that the minimum hourly rates specified in the Agreement would be adjusted annually. The question that arises is whether under the terms of the Agreement, this adjustment continues beyond its nominal life, which has expired some three years ago.

[3] The respondent party to the application is Mr Ian Johnson, a former employee who was subject to the terms of the Agreement. Mr Johnson’s current status might in some circumstances lead me to the view that the Commission should not deal with what is essentially a dispute about an alleged underpayment of wages involving former parties. However, both parties have sought this assistance, and more importantly, the Agreement remains in operation and there are other employees covered by it. Further, there is at least some doubt about the capacity for the Commission to make a binding determination, given the terms of the dispute resolution clause within the Agreement, which do not expressly authorise arbitration, 2 and the import of s.595(3) of the FW Act. Constructively, despite these potential limitations, the applicant employer is seeking some clarification given the present uncertainty.

[4] I note that the applicant employer has apparently made some payments to employees beyond those required under its approach to the Agreement. However, those rates are unlikely to be sufficient to cover the correct payments if the Agreement is to be applied as contended by Mr Johnson.

[5] I also note that the parties have had some discussion with the office of the Fair Work Ombudsman (FWO) and that those discussions have been held in abeyance pending this process. Those discussions also include matters of agreement interpretation that are beyond the immediate issue, including how any adjusted rates are to be applied to a casual employee, but these matters will be impacted by the approach being canvassed in this application.

[6] The parties have now made their…

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.

Keep reading for free

Create a free CaseChat account to read Application to deal with a dispute and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 3687
Decision Date: 1 AUGUST 2017

CaseChat Overview and Summary

B-d Farm Paris Creek Pty Ltd has applied to the Fair Work Commission for its assessment of a dispute concerning the proper application of the B-d Farm Paris Creek Pty Ltd Employee Collective Workplace Agreement 2009, particularly in relation to clause 12.3, which provides for an annual adjustment of minimum hourly rates. The question is whether this adjustment continues beyond the nominal life of the agreement, which expired some three years ago. The respondent, Mr Ian Johnson, contends that the 3% annual adjustment should continue for as long as the Agreement remains in place. The applicant employer argues that the annual adjustment should only apply until the nominal expiry date.

The Fair Work Commission found that the plain meaning of clause 12.3 is that the 3% annual adjustment should continue to apply while the enterprise agreement remains in operation. The Commission's approach was to ascertain the objective intention based upon the language and terms of the Agreement, when read as a whole and considered in context. The Commission found that there was no limitation on the application of the clause and that the terms of the instrument were left unaltered by the nominal expiry. The Commission recommended that the applicant employer reconsiders its position, calculates the proper rates under the Agreement, and rectifies any underpayment of entitlements to Mr Johnson and other employees. The Commission also recommended that the parties commence negotiations for a new enterprise agreement.

The Fair Work Commission made the following recommendations to the parties: (1) The applicant employer should reconsider its position and calculate the proper rates under the Agreement in light of the Commission's views. (2) An assessment should be made of the payments due to Mr Johnson compared to the actual payments he received, and any underpayment should be rectified. (3) The applicant employer should undertake the same process with each of the current and former employees engaged under the terms of the Agreement. (4) If the applicant employer does not accept the recommendations, steps should be taken to have the issue determined by a Court of competent jurisdiction. (5) The parties should commence negotiations for a new enterprise agreement.

Orders