Aviagen Australia Pty Ltd T/A Aviagen Australia Pty Ltd
[2024] FWCA 2460
•2 JULY 2024
| [2024] FWCA 2460 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Aviagen Australia Pty Ltd T/A Aviagen Australia Pty Ltd
(AG2024/1511)
AVIAGEN AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2024
| Agriculture industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 2 JULY 2024 |
Application for approval of the Aviagen Australia Pty Ltd Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Aviagen Australia Pty Ltd Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aviagen Australia Pty Ltd. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.
Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Issues were raised with the applicant going to whether the agreement passes the better off overall test (BOOT). Here the relevant award is the Pastoral Award 2020. A matter was raised with the applicant in respect of the payment of overtime to part time employees and whether depending on the frequency of additional hours worked some employees may not be better off. The applicant explained that part time employees receive overtime rate of pay where they work additional hours beyond 38 hours per week (as provided for at clause 16.2(i) and clause 22.1); are directed or required to work additional hours (up to 38 hours per week as provided for at clause 22.1); and/or agree to work additional hours but do not receive at least 48 hours’ notice of the additional hour (as provided for at clause 16.2(h)). The applicant indicates that the only circumstance in which a part time employee does not receive overtime rates of pay is for additional hours where the employee agrees to work additional hours (up to 38); and they received more than 48 hours’ notice of the additional hours. The applicant submits that the clause is intended to operate in a way so as to provide for an alternate, optional method by which the employer and a part-time employee can agree to temporarily vary the working hours for a particular week.
A further matter was raised in respect to whether the Agreement being silent as to the part time employees’ safeguard provided for at clause 10.2 of the Award pertaining to variations to hours and notice to changes to days worked may result in any disadvantage to employees. The applicant submits that the range of other more beneficial terms in the Agreement comfortably offset any detriment associated with the less prescriptive requirements for the setting of part-time working hours.
A final concern I raised was in relation to Sunday overtime penalties and whether depending on the frequency worked a PW3 employee may not be compensated for this reduction. In response the applicant clarifies that clause 21 of the Agreement deals with ‘Penalty rates’, and clause 21.3 entitles employees to be paid at double time for all hours worked on a Sunday. The applicant submits that when clause 22.3 is read alongside clause 21.3 it is clear that employees working on Sunday are entitled to be paid at double time.
Having regard to the explanations provided by the applicant I am satisfied that the BOOT is met.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.
The Australian Workers’ Union, 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 organisation.
The Agreement was approved on 2 July 2024 and, in accordance with s.54, will operate from 9 July 2024. The nominal expiry date of the Agreement at clause 3.2 is 30 June 2028.
DEPUTY PRESIDENT
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