Australian Perlite Pty Ltd
[2014] FWCA 1819
•18 MARCH 2014
[2014] FWCA 1819 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement
Australian Perlite Pty Ltd
(AG2014/3731)
AUSTRALIAN PERLITE PTY LIMITED WORKPLACE AGREEMENT 2007
Manufacturing and associated industries | |
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 18 MARCH 2014 |
Application for variation of the Australian Perlite Pty Ltd Workplace Agreement 2007.
A. An application has been made for approval of a variation of the Australian Perlite Pty Limited Workplace Agreement 2007 (the agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Australian Perlite Pty Ltd.
B. The agreement shall be varied as follows:
1. By deleting the Title of the Agreement from clause 1 and inserting Australian Perlite Pty Ltd Enterprise Agreement 2013.
2. By deleting clause 3 and inserting the following:
The Agreement shall cover Australian Perlite Pty Limited (“the Employer”) and the employees engaged in the position descriptions as set out in Appendix 1.
3. By deleting clause 4 and inserting the following:
THIS: Agreement is made in accordance with the requirements of the Fair Work Act 2009 (Cth) ("the Act") between Australian Perlite Pty Limited (AUSPERL) (ACN 122 364 238) ("the Employer"),
AND: All employees of the Employer engaged in the position descriptions as set out in Appendix 1,
4. By deleting clause 5 and inserting the following:
This Agreement shall operate from the date of approval by the Fair Work Commission (“FWC”) and shall remain in force for a period of three (3) years.
5. By deleting clause 6 and inserting the following:
6.1 This enterprise agreement operates to the exclusion of any other industrial instrument that might otherwise apply including but not limited to any modern award.
6.2 Unless contrary to any law, a reference in this enterprise agreement to the NES shall be a reference to the NES as at the commencement of this enterprise agreement.
6. By deleting clause 7 and inserting the following:
a) In the event of a dispute arising in the workplace or in relation to the National Employment Standards, the following procedure will apply.
i) The employee(s) concerned will first meet and confer with their immediate supervisor. The employee(s) may elect to appoint another person to act on their behalf including a union delegate.
ii) Subject to the above points where an employee representative (including a union delegate) is involved, s/he will be allowed the necessary time during working hours to interview the employee(s) and the supervisor.
iii) If the matter is not resolved at such a meeting the parties will arrange further discussion involving more senior management as appropriate. The employee(s) may elect to invite a union official to be involved in the discussions. The Employer may also elect to invite employer representative.
iv) If the employee(s) have so elected the union delegate shall be allowed at a place designated by the Employer, a reasonable period of time during working hours to interview the duly accredited Union Officials of the Union to which they belong.
v) If the matter remains unresolved, the dispute will be referred to the FWC. The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation.
vi) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then arbitrate the dispute and make a determination that is binding on the parties.
vii) While the parties are trying to resolve the dispute using the procedures in this term:
(A) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(B) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless the work is not safe; or applicable occupational health and safety legislation would not permit the work to be performed; or the work is not appropriate for the employee to perform; or there are other reasonable grounds for the employee to refuse to comply with the direction.
vii) The parties to the dispute agree to be bound by a decision made by FWC in accordance with this term
7. By deleting Table – 1 and inserting the following:
Table 1 - Rates of Pay
Level | Title | Pattern | Base annual rate |
1 | Process operator | Day or Day/Night | $44,359.04 |
2 | Process operator | Day or Day/Night | $46,985.96 |
3 | Process operator | Day or Day/Night | $49,584.76 |
8. By deleting clause 8.5 and inserting the following:
The wages outlined in Table 1 will be increased by 3% effective December 1, 2014 and again by 3% effective December 1, 2015.
9. By deleting clause 8.7 and inserting the following:
The first three (3) months of employment constitutes a probation period.
If the Employer terminates the employment during the probationary period, the Employer may do so providing one (1) week’s notice.
10. By deleting clause 9.3 and inserting the following:
This involves any other roster that is not a shift roster. Each employee working on a day work is rostered on for an average 38 hours/week.
Starting and ending times are flexible, however to meet the needs of the business, the employee must normally be present at between 8.00am and 4.00pm.
Employees working Day Work may work for 38 hours/week and receive one RDO each month at the request of the Employer.
11. By deleting clause 9.4 and inserting the following:
This involves rotating or fixed roster. Each employee working is rostered on for an average 38 hours/week.
Starting and ending times are flexible, however shift hours typically commence at 0600 hours for dayshift, 1400 hours for afternoon shift and 2200 hours for night shift.
Employees working this arrangement receive one RDO each month to give an average of 38 hours per week.
12. By deleting clause 12.1 and inserting the following:
This sub-clause applies to full- time and part-time employees.
Entitlements
Employees annual leave rights and entitlements are those set by the relevant annual leave provisions of the Act and the National Employment Standards.
Accrual
Employees will accrue an amount of paid annual leave for each completed four-week period of continuous service. In each four week period, employees will accrue an amount of annual leave equal to 1/13 (one thirteenth) of the number of hours (not including overtime) that employees worked during that four week period. For example, if employees work 38 hours each week, they will have worked 152 hours at the end of the four-week period. In this example, employees accrue 11.6923 hours (1/13 of 152) hours annual leave for that four-week period.
Additional leave entitlement for shift workers
A shift worker is also entitled to accrue an additional amount of paid annual leave, for each completed 12 month period of continuous service with the Employer, of 1/52 of the number of hours (not including overtime) worked by the shift worker during that 12 months period. For example a shift worker whose hours worked for a 12 month period were 38 hours per week, and who worked as a shift worker throughout that period, would be entitled to an additional 38 hours of annual leave (which would be the equivalent of one week of annual leave )
A “shift worker” means: an employee who is employed by the Employer in a part of the business in which shifts are continuously rostered 24 hours a day for 7 days a week; and is regularly rostered to work those shifts; and regularly works on Sundays and public holidays.
Crediting
Employees annual leave will be credited at least monthly. An employee may request to take any annual leave credited to them. In considering the request, the Employer will take into account the operational requirements of the business. The request will not unreasonably be refused.
Revocation
The Employer will not unreasonably revoke any authorised leave.
Excessive annual leave
Employee(s) may be directed by the Employer to take annual leave if the amount of annual leave credited is more that 1/13 of the number of hours (not including overtime) worked in the previous 104 weeks. Employee(s) must comply with any such direction.
Amount of annual leave that the Employer can direct employee (s ) to take
The amount of leave that the Employer may direct employee(s) to take is equal to, or less than, 1/4 of the amount of leave that the employee(s) have credited to the employee(s) at the time the direction to take annual leave is given. For example, if the employee(s) have accrued 304 hours (8 weeks at 38 hours per week) leave, the Employer may direct the employee(s) to take 76 hours (2 weeks at 38 hours per week) leave.
Annual leave loading
During any period of annual leave, employee(s) will be paid the base hourly rate for each hour of annual leave, plus an annual leave loading. The annual leave loading is 17.5% of your base hourly rate for each hour of annual leave. To avoid any doubt, this means the base hourly rate is multiplied by 1.175 for each hour of annual leave.
Payment on termination
If the employee(s) employment ends, accrued but untaken annual leave will be paid out to you the time of your departure or at such other suitable time. The amount paid will be calculated on the base hourly rate.
No loading on termination
Employee(s) will not receive annual leave loading on any untaken annual leave paid out at termination.
13. By deleting clause 12.3 and inserting the following:
Employee(s) are entitled to Long Service Leave in accordance with NSW Long Service Leave Legislation.
The entitlement is 8.67 weeks for 10 years of service. An employee who has completed 5 years of service is entitled to a pro rata long service leave payment if he or she resigns as a result of illness, incapacity, domestic or other pressing circumstances, or is dismissed for any reason except serious and wilful misconduct.
The Employer prefers employees, by mutual arrangement, to take all or part of long service leave as soon as convenient after it falls due.
Leave not taken is paid in a lump sum on resignation or retirement, except for serious and wilful misconduct.
14. By deleting clause 12.4.
15. By deleting clause 12.5 and replacing with the following:
This sub-clause applies to full-time and part-time employees.
An employee may take paid personal/carer’s leave:
• if they are unfit for work because of their own personal illness or injury or
• to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member. A member of the employee’s immediate family means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.
Personal leave pursuant to the Act
Employee(s) are entitled to accrue and take personal leave in accordance with the relevant provisions of the Act and the National Employment Standards.
If employee(s) cannot come to work due to personal sickness or injury they should notify the manager as soon as possible.
On request the employee shall prove to the satisfaction of the Employer, by the production of a medical certificate or other satisfactory evidence (a statutory declaration, will constitute reasonable proof), that the absence for which personal leave payment is being claimed was on account of personal illness or injury. A medical certificate is required for an absence of 2 or more working days.The employee(s) must comply with any such requirement.
If the employee(s) are resuming work after serious or prolonged illness the employee(s) must produce a certificate of fitness from their own Medical Practitioner, and report to the Occupational Health Centre for assessment as soon as possible before returning to work.
If the absence is due to a work-related injury, please ensure the manager is aware of this. (Non-disclosure of this information may prejudice any claim of Worker’s Compensation).
Accrual of personal/carer’s leave
Employee(s) will accrue an amount of paid personal/carer’s leave in each four week period equal to 1/26 of the number of hours (not including overtime) worked during the four week period. That is, Employees will receive 10 days per year.
Part-time employees will accrue paid personal/carer’s leave on a pro-rata basis
Amount of leave that can be taken
Employee(s) may use any of their accrued personal/carer’s leave for personal illness or injury or to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member. The amount of personal/carer’s leave that may be used for personal/carer’s leave in a 12 month period is an amount equal to 1/26th of the number of hours (not including overtime) that worked in the 12 month period.
Unpaid carer/s leave
Unpaid carer’s leave applies to all employees.
If employee(s) have exhausted their entitlement to paid personal/carer’s leave, they are entitled to take two unpaid days as a carer on each permissible occasion.
When carer’s leave can be taken
Carer’s leave can be taken when the employee(s) are required to provide care and support to a member of their immediate family, or a member of their household because of:
• a personal illness or injury of the member; or
• an unexpected emergency affecting the member.
16. By deleting clause 12.7 and inserting the following:
This sub-clause applies to full-time and part-time employees.
Entitlement
Employee(s) are entitled to up to two days compassionate leave on each occasion on which a member of the employee(s) household or immediate family contracts or develops a personal illness or injury that poses a serious threat to their life, or dies.
An employee may take compassionate leave for each occasion as:
•a single continuous two day period or
•two separate periods of one day each or
•any separate periods to which the employee and his or her employer agree.
An employee will, if required, provide the Employer with reasonable proof of such death or illness.
Definitions
For the purposes of compassionate leave under this Agreement:
“Immediate family member” includes your spouse, child, parent, grandparent, sibling, and your spouse’s child, parent, grandparent, grandchild and siblings.
“Child” includes an adopted child, a stepchild, an ex-nuptial child and an adult child.
“Spouse” includes a former spouse, a de-facto spouse and a former de-facto spouse.
17. By deleting clause 12.8 and inserting the following:
The National Employment Standards apply.
The relevant parental leave standard of the National Employment Standards and the Act apply with respect to leave entitlements for maternity, paternity and adoption purposes.
18. By adding the following to clause 12.10:
• any other day or part-day declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory (or a region of the State or Territory) as a public holiday.
19. By deleting clause 14 and replacing with the following:
The Employer and the employees covered by this Agreement are committed to searching for areas where improvements can be made and implementing such improvements. The aim is to become a competitive manufacturing site with continually improving levels of customer satisfaction, employee satisfaction, product quality and productivity.
The parties agree to demonstrate commitment to the achievement of these aims.
Performance Management
All employees will participate in AUSPERL’s performance management processes which provide for:
● Regular feedback from management and peers;
● Feedback on performance against agreed objectives; and
● Reward and recognition for achievement of stretch goals (at management’s sole discretion).
A number of performance indicators will be established, in consultation with employees, which will provide a reliable and accurate means of monitoring improvement in productivity and efficiency. It is agreed that the indicators may be selected from areas that may include, but not be limited to manufacturing cost; consumable usage; labour cost/per unit of product; waste reduction; absenteeism; and occupational health and safety.
Work Flexibility
Work flexibility is a key factor contributing to the achievement of an internationally competitive and responsive company based on satisfying customer’s needs.
Employees shall undertake and perform functions and duties for which they are suitably trained, including work incidental or peripheral to their primary work tasks or functions. There shall be full labour mobility across all departments and areas.
An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:
(a) the agreement deals with 1 or more of the following matters:
(i) arrangements about when work is performed;
(ii) overtime rates;
(iii) penalty rates;
(iv) allowances;
(v) leave loading; and
(b) the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and
(c) the arrangement is genuinely agreed to by the employer and employee.
The employer must ensure that the terms of the individual flexibility arrangement:
(a) are about permitted matters under section 172 of the Fair Work Act 2009; and
(b) are not unlawful terms under section 194 of the Fair Work Act 2009; and
(c) result in the employee being better off overall than the employee would be if no arrangement was made.
The employer must ensure that the individual flexibility arrangement:
(a) is in writing; and
(b) includes the name of the employer and employee; and
(c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and
(d) includes details of:
(i) the terms of the enterprise agreement that will be varied by the arrangement; and
(ii) how the arrangement will vary the effect of the terms; and
(iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and
(e) states the day on which the arrangement commences.
The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
The employer or employee may terminate the individual flexibility arrangement:
(a) by giving no more than 28 days written notice to the other party to the arrangement; or
(b) if the employer and employee agree in writing—at any time.
20. By deleting clause 15 and inserting the following:
a) The Employer and employees shall comply with the requirements of the Work Health and Safety Act 2011 (NSW), as amended and with Regulations made under the Act.
b) Employees recognise they are responsible for working at all times in a safe manner in compliance with statutory requirements and the AUSPERL Banksmeadow SH&E requirements. These requirements are outlined in the AUSPERL OH&S Policy, to which all employees are required to be familiar with.
c) The Employer shall supply protective equipment or material deemed necessary to perform in a safe manner such task required of employees. All employees shall maintain protective equipment or materials supplied by the Employer in good working conditions. All issues of protective equipment or materials remains the property of the Employer.
d) It is a condition of employment that employees undergo Health Assessments as and when required by the Employer. These Health Assessments will be performed for the purpose of ensuring that the Employer’s Health and Safety obligations to employees are being met.
e) The AUSPERL Banksmeadow Site is primarily a non-smoking site although smoking is permitted in designated areas.
21. By deleting clause 16.1 and replacing with the following:
1) Other Acceptable Employment
The Employer may vary the general severance pay prescription if the Employer obtains other acceptable employment for an employee.
This provision does not apply to circumstances involving transmission of business as set out in 2.
2) Transmission of Business
a) The provisions of the Redundancy clause are not applicable where a business is before or after the date of this Agreement, transmitted from an employer (in this subclause called “the transmittor”) to another employer (in this subclause called “the transmittee”), in any of the following circumstances:
i) Where the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to the continuous service of the employee with the transmittee; or
ii) Where the employee rejects an offer of employment with the transmittee:
- In which the terms and conditions are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to the employee at the time of ceasing employment with the transmittor; and
- which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service of the employee with the transmittee.
22. By adding clause 17.18
(1) This term applies if:
(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and
(b) the change is likely to have a significant effect on employees of the enterprise.
(2) The employer must notify the relevant employees of the decision to introduce the major change.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion—provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(8) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.
(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
(10) In this term, relevant employees means the employees who may be affected by the major change.
C. The variation to the Agreement is approved and will operate from the date of this decision.
D. A consolidated version of the Agreement, as varied, is attached to this decision.
SENIOR DEPUTY PRESIDENT
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