Australian Lamb Colac Labour Hire Pty Ltd

[2019] FWCA 5553

[2019] FWCA 5553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Lamb Colac Labour Hire Pty Ltd
(AG2018/3032)

AUSTRALIAN LAMB COLAC LABOUR HIRE PTY LTD ENTERPRISE AGREEMENT 2018

Meat Industry
COMMISSIONER GREGORY	MELBOURNE, 9 AUGUST 2019

Application for approval of the Australian Lamb Colac Labour Hire Pty Ltd Enterprise Agreement 2018.

[1] An application has been made by Australian Lamb Colac Labour Hire Pty Ltd (“the Applicant”) under s.185 of the Fair Work Act 2009 (“the Act”) for approval of an enterprise agreement known as the Australian Lamb Colac Labour Hire Pty Ltd Enterprise Agreement 2018 (“the Agreement”). It is a single enterprise agreement.

[2] After reviewing the application and the F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought clarification about various matters including, in particular, the arrangements proposed in regard to Sponsored Employees referred to in clause 22 of the Agreement. The Australasian Meat Industry Employees’ Union, Victorian Branch (“the AMIEU”), who were a Union Bargaining Representative for the Agreement, also provided a F18 Statutory Declaration indicating that it disagreed with a number of matters contained in the Employer’s Statutory Declaration. It was accordingly decided that the matter should be set down for hearing to enable further submissions and evidence to be provided in support of the application.

[3] Mr E. Gisonda of Counsel was given permission under s.596(2)(a) of the Act to appear in those proceedings on behalf of the Applicant as the matter involved a degree of complexity and his involvement might enable it to be dealt with more efficiently. Mr P. Conway, Secretary, and Mr J. Piper, Organiser, appeared on behalf of the AMIEU.

[4] Section 186 of the Act requires that the Commission must be satisfied that the Agreement passes the “better off overall test.” The requirements of the test are dealt with in s.193(1) in the following terms:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) 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.” 1

[5] Section 193(6) also provides that the “test time” is the time the application for approval is made under s.185.

[6] It is well established that the application of the “better off overall test” requires the identification of terms and conditions in a proposed Agreement that are more beneficial for the employees, and those which are less beneficial, with an overall assessment then being made about whether the employees would be “better off overall” under the Agreement.

[7] As indicated, clause 22 of the proposed Agreement deals with the arrangements to apply to “SPONSORED EMPLOYEES,” and indicates that such employees “will be paid the annual salary specified in their individual agreement (Annualised Salary) instead of any entitlement under cl. 30 Minimum Wages.” The Commission accordingly sought further information about whether it can be satisfied that these arrangements meet the requirements of the “better off overall test.”

[8] It is noted in the materials attached to the revised F17 Employer’s Statutory Declaration that the Applicant has entered into a labour agreement under the Migration Act 1958. This allows for sponsored employees to be engaged on a full-time basis and paid a base rate of pay that is equal to or greater than the temporary skilled migration income threshold, as amended from time to time. The threshold rate is specified in an instrument made under the relevant Migration Regulations.

[9] The AMIEU indicated in its submissions that the rate is currently $27.28 per hour, and as such is set at a rate that is $4 per hour more than the Level 3 rate contained in the underlying Award. It also noted that if employees are subsequently assessed to be performing at the Level 4 rate then they are to be paid at the relevant rate specified in the Agreement. I am satisfied, in response, that the arrangement provided for in clause 22 of the Agreement satisfies the requirements of the better off overall test.

[10] The Commission raised a series of further issues where additional clarification was sought. These included the entitlements of part-time employees to overtime, in appropriate circumstances; the arrangements to apply when higher duties are performed; and confirmation that any accrued time in lieu was to be paid out on termination.

[11] The Applicant has subsequently provided a series of undertakings, and the details have also been provided to the AMIEU. A copy of those consolidated undertakings is attached in Annexure A. I am satisfied that they will not cause financial detriment to any employee to be covered by the Agreement, and that they do not constitute a substantial change to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement.

[12] I am otherwise satisfied that each of the requirements of ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[13] The AMIEU, being a Union 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 organisation.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2019. The nominal expiry date of the Agreement is 15 August 2022.

COMMISSIONER

Annexure A

 1   Fair Work Act 2009 (Cth) s.193.

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