Australian Workers' Union, the Queensland Branch v Glasstech (QLD) Pty Ltd

[2019] FWC 6893

[2019] FWC 6893

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Australian Workers' Union, The - Queensland Branch

v

Glasstech (QLD) Pty Ltd

(C2019/5479)

COMMISSIONER HUNT BRISBANE, 4 OCTOBER 2019

Application to deal with a dispute - recommendation.

1. The Fair Work Commission (Commission) makes this Recommendation at the request of The Australian Workers’ Union (AWU) regarding its dispute with Glasstech (QLD) Pty Ltd (Glasstech). On 4 September 2019 the AWU made application to the Commission pursuant to s.739 of the Fair Work Act 2009 (the Act).

1. The dispute involves an alleged failure by Glasstech to pay to relevant employees employed pursuant to the Joinery and Building Trades Award 2010 (the Award), certain entitlements including:

·   Overtime beyond 38 ordinary hours per week;

·   A rostered day off when employees are purportedly working a 40 hour week; and

·   Annual leave loading.

1. In its response to the Commission and during a telephone conference convened by me on 30 September 2019, Glasstech insisted that it is entitled to off-set higher hourly rates of pay paid to employees against entitlements not paid by it under the Award.  Glasstech confirmed that it employs employees on a 40-hour ordinary week, and it pays all overtime at time-and-a-half. 

1. Having reviewed an employment contract issued to an employee in August 2018, I informed the parties during the telephone conference that I held the following concerns relevant to such contract against the Award:

·   Overtime not paid for the 39^th and 40^th hour of the week;

·   All overtime, including Saturday and Sunday overtime paid at time and a half only;

·   Notice of termination by the employer to be given to an employee capped at two weeks;

·   Annual leave loading not payable;

·   “Medical procedures” are not considered sick leave and must be either taken as annual leave or unpaid leave.

1. Glasstech confirmed that it has not made any individual flexibility agreements with employees which it is available to make pursuant to clause 7.1 of the Award.

1. Glasstech has re-issued new contracts of employment to relevant employees, however it is my understanding that not all employees have agreed to enter into the new contracts.  The new contracts provide a 40-hour ordinary week, with payment of all overtime at time-and-a-half only.  The new contract includes a purported ‘offset’ clause, claiming that any payment made to the employee exceeding any legislative minimum entitlement may be used to offset any entitlement that may have been applicable.

1. I informed the parties at the conclusion of the telephone conference that I may make a Recommendation to resolve the dispute.  Following the conference the AWU requested that the Commission make a published Recommendation, and Glasstech urged that the Commission not make a published Recommendation.

1. I consider it necessary to make a Recommendation and for it to be published.  The Respondent has had available to it, since the introduction of the Award in 2010, the ability to enter into an individual flexibility agreement with individual employees, which may have achieved what it is attempting to do – pay a rate higher than the Award to purportedly compensate employees for entitlements they will no longer receive under the Award.

1. The Award has long provided for this, where an employee agrees to enter into an individual flexibility agreement.  It is to be noted that an individual flexibility agreement cannot be made as a condition of employment; it can only be entered into once an employee is employed.

1. There is great risk to Glasstech in asserting that throughout the years it has paid a rate higher than the Award to relevant employees, and that it should be offset against Award entitlements not paid by it to employees.  It would be necessary for a Court of competent jurisdiction to determine the issue relevant to the specific circumstances. Glasstech has taken the approach to-date that it is not exposed to an underpayment of wages.   Respectfully, I do not subscribe to the confidence Glasstech has in its defence of the AWU’s claim.

1. It is my Recommendation that Glasstech should agree to meet with the AWU and affected employees and calculate the potential underpayment to affected employees over a period of no greater than six years.

1. It is in the best interests of Glasstech and its employees to enter into an individual flexibility agreement if over-award payments can satisfactorily and appropriately off-set other award conditions that are agreed between the parties not to be paid.   There is a significant difference between parties agreeing to enter into an individual flexibility agreement, and an employer communicating that in its opinion employees are better off under its common law contract.

1. If affected employees at [11] are suitably motivated by a sensible and pragmatic resolution of an alleged underpayment of wages, they may be more inclined to enter into an individual flexibility agreement, thus ensuring certainty of wages and conditions.

1. Accordingly, it is my Recommendation that Glasstech not shut down discussions relevant to the alleged underpayment of wages by asserting that it is correct in its approach and refusing to acknowledge that an underpayment may exist.  For swift resolution of the dispute, and to ensure compliance with the Award in the future, it would be appropriate to pragmatically resolve any past alleged breaches in order to obtain a certain future. 

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