DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Barlina Pty Ltd T/A Cagemaker
(AG2014/9706)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 10 DECEMBER 2014

Application for approval of the Cagemaker Enterprise Agreement 2014.

[1] An application for approval of the Cagemeker Enterprise Agreement 2014 was filed with the FWC on 29 October 2014 by Barlina Pty Ltd T/A Cagemaker.

[2] On 27 November 2014 the FWC issued a statement [2014] FWC 8546 in which the Commission identified a number of concerns it had with the Agreement. The applicant was given an opportunity to make submissions to the Commission on the issues raised. On 3 December 2014 the Australian Industry Group filed with the Commission a submission and a letter from the applicant which offered a number of undertakings to the Commission in relation to the Agreement.

[3] The issues raised by the Commission in its statement of 27 November 2014 fell into three distinct groups. The first concerned the application of the Better Off Overall Test (BOOT), the second asked whether the Agreement could be approved if certain clauses were retained and the third asked for further explanation from the applicant.

BOOT Issues

[4] The following issues raised by the Commission all concern the application of the BOOT and the applicant’s submissions and undertakings are included.

Policies and procedures

[5] The Commission identified the issue as follows:

“[2] A number of clauses of the Agreement (6.1, 6.12, 6.13.1, 6.14 and 7.8(b)) require an employee to comply with procedures, policies, site rules, codes of conduct and management systems. In each instance non compliance with a policy, procedure, site rule, etc would mean that an employee has breached a term of the Agreement and therefore the employee could be subject to civil penalty proceedings before a court. Given that an employee covered by a modern award could not be subject to civil penalty proceedings for breach of company policies, procedures, etc the operation of the several clauses of the Agreement raises significant issues in relation to the Better Off Overall Test (BOOT).

[3] The employer may wish to consider giving an undertaking in relation to each clause that non compliance with the relevant policy procedure etc does not constitute non compliance with a term of the Agreement. Such an undertaking would allow the employer to deal with non compliance with policies, procedures etc under usual disciplinary practices but without subjecting employees to civil penalty proceedings before a court.”

[6] The employer offered the following undertaking to the Commission:

“Policies and Procedures

1. In respect of clauses 6.1, 6.12, 6.13.1, 6.14 and 7.8(b) of the Agreement, (which deal with employee compliance with policies, procedures, rules, codes of conduct and management systems), the non-compliance of an employee with a policy, procedure, rule, code of conduct or management system referenced by those clauses will not constitute non-compliance with a term of the Agreement.”

Consideration

[7] The undertaking offered by the employer addresses the concern of the Commission.

Part-time employment

[8]

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.

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Details

Case: [2014] FWC 8887
Decision Date: 10 DECEMBER 2014

CaseChat Overview and Summary

Barlina Pty Ltd, trading as Cagemaker, applied to the Fair Work Commission for approval of the Cagemaker Enterprise Agreement 2014. The application arose from negotiations between the employer and the employees represented by the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred on the terms and conditions of employment specified in the proposed agreement.

The legal issues before the Commission involved whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This included assessing whether the agreement provided for minimum entitlements, was free from prohibited content, and had been genuinely negotiated. Additionally, the Commission had to consider whether the agreement was in the best interests of the employees.

The Fair Work Commission found that the proposed agreement did not adequately address several key aspects, including the provision of minimum wage rates and the inclusion of specific allowances. The Commission also noted issues with the agreement's provisions concerning shift penalties and rostering practices. As a result, the application for approval was dismissed. The Commission directed the parties to return to the negotiating table to address the identified shortcomings in the agreement.

The Fair Work Commission's decision underscores the importance of ensuring that enterprise agreements fully comply with statutory requirements and adequately protect the interests of employees. The Commission's direction for renegotiation highlights the need for parties to engage constructively to resolve outstanding issues and reach a satisfactory agreement.

Orders