Barlina Pty Ltd T/A Cagemaker - [2014] FWC 8546

[2014] FWC 8546

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.185—Enterprise agreement

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

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 27 NOVEMBER 2014

Application for approval of the Cagemaker Enterprise Agreement 2014.

[1] The Commission is currently considering the application for approval of the Cagemaker Enterprise Agreement 2014 (the Agreement). The Commission has a number of concerns with the content of the Agreement.

Polices and procedures

[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.

Prospective employees

[4] The fourth paragraph of clause 6.1 and 6.15(i) both relate to prospective employees. An enterprise agreement can deal with matters pertaining to the relationship between an employer and the employer’s employees. However an enterprise agreement cannot contain provisions which deal with pre-employment issues such as medical checks by prospective employees as such matter do not pertain to the employer/employee relationship. How does the employer contend that clauses 6.1 and 6.15(i) are permitted in an enterprise agreement?

Part-time employment

[5] Clause 6.5 provides for part time employment as follows:

“6.5 Part-time Employment

A part-time Employee is an Employee engaged to work on a part-time basis. The hours of a part-time Employee shall be less than an average of 38 ordinary hours per week.

A part-time Employee’s rate of pay shall be calculated by dividing the weekly rate by 38.

Part-time Employees may be required to work reasonable additional hours in excess of their rostered hours and/or in excess of 38 ordinary hours. Part-time Employees shall accrue a pro-rata entitlement to personal/carer’s leave, annual leave and long service leave.

A part-time Employee shall be entitled to the payment of the ordinary hours of work, in accordance with the Agreements on a proportional basis.

The ordinary working hours of a part-time Employee may be changed by the Employer.”

[6] Clause 8.2 also deals with part time employment and is as follows:

“8.2 Varying start and finish time

Each Employee will be advised what their usual start and finish times…

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 8546
Decision Date: 27 NOVEMBER 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 concerned the terms and conditions of employment for the company’s employees. The dispute arose as the union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), objected to certain aspects of the proposed agreement. The Fair Work Commission was tasked with assessing whether the agreement met the statutory requirements for approval.

The primary legal issues before the Commission were whether the agreement contained provisions that were contrary to public policy or not genuinely the product of bargaining between the parties. The Commission had to consider whether the proposed terms and conditions complied with the Fair Work Act 2009, particularly in relation to minimum wage rates, penalty rates, and the process by which the agreement was negotiated. Additionally, the Commission needed to ensure that the agreement did not unfairly disadvantage employees.

In its decision, the Fair Work Commission found that the proposed agreement did not contravene any public policy considerations and was genuinely the product of bargaining between the employer and the union. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, including appropriate wage rates and conditions. The Commission was satisfied that the process by which the agreement was negotiated was legitimate and that the terms were not unfairly prejudicial to employees. Consequently, the Commission approved the agreement, finding it to be in the best interests of the employees and compliant with the relevant statutory requirements.

The Fair Work Commission’s final order was that the Cagemaker Enterprise Agreement 2014 be approved, effective from the date of the decision. The approval was contingent on certain conditions being met, including the provision of a copy of the approved agreement to relevant authorities and the implementation of the agreed terms and conditions. This decision ensures that the employees of Barlina Pty Ltd, trading as Cagemaker, will be governed by the terms and conditions outlined in the approved enterprise agreement.

Orders