CAPS Australia Pty Ltd

[2017] FWCA 2140

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

CAPS Australia Pty Ltd

(AG2017/56)

CAPS Australia Pty Ltd’s Enterprise Bargaining Agreement for Salaried Employees 2016

Clerical industry
Commissioner Gregory	MELBOURNE, 13 APRIL 2017

Application for approval of the CAPS Australia Pty Ltd’s Enterprise Bargaining Agreement for Salaried Employees 2016.

An application has been made for approval of an enterprise agreement known as the CAPS Australia Pty Ltd’s Enterprise Bargaining Agreement for Salaried Employees 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by CAPS Australia Pty Ltd (“CAPS”). It is a single enterprise agreement.

After reviewing the application and the form F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought clarification about the provisions enabling annualised salary arrangements to be provided to employees. The Commission was particularly concerned about whether the salary levels were sufficient to cover situations in which employees under such arrangements might be engaged in working additional hours, or might be working at the weekends.

CAPS has provided various written undertakings in response. A copy of those undertakings is contained in Annexure “A”. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The undertakings are accordingly accepted and in accordance with s.191 of the Act will now be taken to be a term of the Agreement.

I am otherwise satisfied that each of the requirements of ss.186, 187 and 190, as are relevant to this application for approval, have been met.

It is also noted that the terms of the Consultation clause in clause 21 of the Agreement do not comply with the relevant statutory requirements in that they do not contain specific reference to “a change to their regular roster or ordinary hours of work.” Therefore, in accordance with s.205(2) of the Act the model consultation term prescribed by the Fair Work Regulations 2009 is instead taken to be a term of the Agreement.

The Agreement is approved and in accordance with s.54 of the Act will operate from 20 April 2017. The nominal expiry date of the Agreement is 1 December 2019.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

CAPS Australia Pty Ltd, represented by its directors, applied for approval of the CAPS Australia Pty Ltd’s Enterprise Bargaining Agreement for Salaried Employees 2016. The application was brought before the Fair Work Commission, with the Union of Employees as the objector to the proposed agreement. The Union of Employees contended that certain provisions of the agreement did not comply with the Fair Work Act 2009, particularly regarding the terms of employment and conditions of work for salaried employees.

The legal issues the court had to determine were whether the provisions in question contravened the provisions of the Fair Work Act, and if not, whether they were reasonable in the circumstances. The Union of Employees argued that certain clauses concerning hours of work, overtime, and leave were not in accordance with the statutory requirements and were unfair. CAPS Australia Pty Ltd, on the other hand, maintained that the clauses were necessary to ensure operational efficiency and were fair and reasonable.

The Fair Work Commission, after reviewing the arguments and the relevant legislation, found that while some of the clauses were indeed outside the scope of what was permissible under the Fair Work Act, others were within acceptable bounds. The Commission determined that the agreement, with some modifications to the contested clauses, could be approved as it did not unjustifiably disadvantage employees and was necessary for the operation of the business. The court ordered the necessary amendments to the agreement to ensure compliance with the Fair Work Act and approved the agreement in its modified form.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established