Cater Plus Pty Ltd T/A Bidvest Adelaide
[2011] FWA 1281
•25 FEBRUARY 2011
[2011] FWA 1281 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Cater Plus Pty Ltd T/A Bidvest Adelaide
(AG2011/179)
Wholesale Foodservice DEPUTY PRESIDENT BARTEL | ADELAIDE, 25 FEBRUARY 2011 |
Application for Bidvest Adelaide Enterprise Agreement 2011.
[1] Cater Plus Pty Ltd T/As Bidvest Adelaide (the employer) has made application pursuant to s. 185 of the Fair Work Act 2009 (the Act) for approval of the Bidvest Adelaide Enterprise Agreement 2011 (“the Agreement”). The Agreement is a single enterprise agreement.
[2] On 7 February I provided a statement of my preliminary findings in relation to the application for approval to the employer and to the National Union of Workers (NUW), the latter having been identified as a bargaining representative for the Agreement in the employer’s application for approval of the Agreement.
[3] That statement indicated several areas of the Agreement on which I sought clarification or a response for the purposes of considering whether the Agreement meets the better off overall test as required by s.186(2)(d) of the Act. Aside from the matters specifically identified in that regard, I indicated that I was satisfied that all other requirements of the Act for approval of the Agreement had been met. The employer’s bargaining representative, D’Arcy Legal Pty Ltd T/As Agnew D’Arcy Legal, subsequently provided a response on 14 February 2011 including additional information relating to the matters raised in the statement. No response was provided by the NUW.
Clerks’ pay rates
[4] The main issue that gave rise to the concern as to whether the Agreement would pass the better off overall test are the rates of pay for Clerks under the Agreement. The clerical classifications are defined in the Agreement as follows:
“Level 1 shall mean an Employee appointed as such who can apply one or more computer software packages developed for a micro personal computer or a central computer resource to either:
- Create new files and records;
- Maintain computer based records management systems;
- Identify and extract information from internal and external sources; or
- Use of advanced word processing/keyboard functions.
Level 2 shall mean and Employee appointed as such who has the skills of a Level 1 employee and has more than 2 years experience with the employer.” 1
[5] The ordinary hourly rate of pay for these classifications at the commencement of the Agreement is $17.81 for a Level 1 Employee and $18.41 for a Level 2 Employee. 2
[6] The modern award that would otherwise cover these employees is the Clerks - Private Sector Award 2010 (the Award). I made a preliminary finding that that the Agreement definitions are consistent with Level 3 under the Award, which attracts an hourly rate of $18.44. In response, the employer contended that the definitions in the Agreement are consistent with the definition of Level 2 under the Award, which attracts an ordinary hourly rate of $17.46 in the first year of service and $17.90 in the second and subsequent year of service. 3 The employer acknowledged that the definition of Level 1 under the Agreement replicates one of the “Typical duties/skills” of a Level 3 employee under the Award. However, the employer submits that:
- The tasks and skills prescribed in 3.1.1 of the Agreement (I understand this to be a reference to 3.1.3) are generic to clerical work and would be expected of most clerical employees;
- The tasks in 3.1.3 do not represent the whole of the Level 3 definition contained in the Award
- The important distinction between Level 2 and Level 3 under the Award is to be found in the characteristics of Level 3, which provides “... that an employee can be required to give assistance and/or guidance and train employees. The employees of Bidvest Adelaide ...... will not be required to undertake this work...”
[7] The relevant classification definitions are contained in Schedule B to the Award as follows:
“B.2 Level 2
B.2.1 Characteristics
This level caters for the employees who have had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.
Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
The work of these employees may be subject to final checking and as required, progress checking. Such employees may be required to check the work and/or provide guidance to other employees at a lower level and/or provide assistance to less experienced employees at the same level.
B.2.2 Typical duties/skills
Indicative typical duties and skills at this level may include:
Reception/switchboard duties as in Level 1 and in addition responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation, and use of interpersonal skills are a key aspect of the position.
Operation of computerised radio/telephone equipment, micro personal computer, printing devices attached to personal computer, dictaphone equipment, typewriter.
Word processing, e.g. the use of a word processing software package to create, format, edit, correct, print and save text documents, e.g. standard correspondence and business documents.
Stenographer/person solely employed to take shorthand and to transcribe by means of appropriate keyboard equipment.
Copy typing and audio typing.
Maintenance of records and/or journals including initial processing and recording relating to the following:
• reconciliation of accounts to balance;
• incoming/outgoing cheques;
• invoices;
• debit/credit items;
• payroll data;
• petty cash imprest system; and
• letters etc.
Computer application involving use of a software package which may include one or more of the following functions:
• create new files and records;
• spreadsheet/worksheet;
• graphics;
• accounting/payroll file; and
• following standard procedures and using existing models/fields of information.
Arrange routine travel bookings and itineraries, make appointments.
Provide general advice and information on the organisation’s products and services, e.g. front counter/telephone.
Call centre customer contact officer grade 1 is employed to:
• use known routines and procedures;
• have some accountability for quality of outcomes;
• receive calls;
• use common call centre technology;
• enter and retrieve data;
• work in a team;
• manage own work under guidance; and
• provide at least one specialised service (sales and advice for products and services, complaints or fault enquiries or data collection surveys).
An employee who holds a Certificate II in Telecommunications (Customer Contact) or equivalent is to be classified at this level when employed to perform the functions defined.
B.3 Level 3
B.3.1 Characteristics
Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work. Employees require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
Such employees may be required to give assistance and/or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and would be able to train such employees by means of personal instruction and demonstration.
B.3.2 Typical duties/skills
Indicative typical duties and skills at this level may include:
(i) Prepare cash payment summaries, banking report and bank statements; calculate and maintain wage and salary records; follow credit referral procedures; apply purchasing and inventory control requirements; post journals to ledger.
(ii) Provide specialised advice and information on the organisation’s products and services; respond to client/public/supplier problems within own functional area utilising a high degree of interpersonal skills.
(iii)* Apply one or more computer software packages developed for a micro personal computer or a central computer resource to either:
• create new files and records;
• maintain computer based records management systems;
• identify and extract information from internal and external sources; or
• use of advanced word processing/keyboard functions.
(iv) Arrange travel bookings and itineraries; make appointments; screen telephone calls; respond to invitations; organise internal meetings on behalf of executive(s); establish and maintain reference lists/personal contact systems for executive(s).
(v) Application of specialist terminology/processes in professional offices.
(vi) Call centre customer contact office grade 2 is employed to:
• perform a broader range of skilled operations than grade 1;
• exercise some discretion and judgment in the selection of equipment, services or contingency measures;
• work within known time constraints;
• provide multiple specialised services to customers (including complex sales, service advice for a range of products or services, and difficult complaint and fault inquiries);
• deployment of service staff using multiple technologies; and
• exercise a limited amount of leadership over less experienced employees.
An employee who holds a Certificate III (Customer Contact) or equivalent is to be classified at this level when employed to perform the functions defined.
* Note: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular level.”
[8] I am unable to accept the position advanced on behalf of the employer. The definition contained in the Agreement reflects one of the typical functions that may be performed by a Level 3 employee under the Award. The typical functions and skills set out within the award definitions are indicative and typical of the duties and skills that may be performed at a particular level. There is no requirement for all or even any of the listed duties to be performed in order to be classified at a particular level, however it is significant that the Agreement definition is framed in terms of a typical duty at Level 3. As the note to these tasks indicates, they may be a feature of Level 3 or Level 4. Such tasks do not appear throughout the classification definitions and are therefore not ‘generic’ clerical duties under the Award.
[9] The nature of the tasks in Level 3 generally reflect an increase in complexity over those tasks identified in Level 2. For example, Level 2 employees are required to maintain records and journals, whereas in Level 3 employees maintain computer based records management systems. In level 2 employees undertake word processing to “create, format, edit, correct, print and save text documents, e.g. standard correspondence and business documents” and undertake copy typing and audio typing, whereas in Level 3 employees “... use advanced word processing/keyboard functions.”
[10] In relation to the employer’s contention that the provision of guidance and assistance to other employees is a characteristic of Level 3 and is not required to be performed by clerks who are covered by the Agreement, I note that this characteristic is a feature of both Level 2 and Level 3 definitions under the Award and is not a mandatory requirement at either level.
[11] I find that the work requirements for Level 1 and Level 2 Clerks under the Agreement are consistent with Level 3 under the Award. As such, the rates prescribed in the Agreement for a Level 1 Clerk are $23.94 per week (for a full time employee) less than the Award rate of pay, while the rate for a Level 2 Clerk is only marginally less than the Award rate.
Other issues
[12] I sought information from the employer on the arrangement of hours for Telephone Sales Clerks for the purposes of applying the better off overall test. On the basis of the information now provided, I am satisfied that the higher rate of pay under the Agreement compensates Telephone Sales Clerks for the loss of certain penalties otherwise provided under the Award.
[13] The Agreement contains an exemption clause. It provides that the clauses of the Agreement pertaining to hours of work, overtime, breaks, shift allowances, weekend penalty rates, first aid allowance, two or more classes of work and public holidays will not apply to any employee in receipt of a weekly wage at least 25% higher than the highest wage specified for a similar class of employee. I requested information about the hours worked by employees who may be in receipt of a wage at this level. The response indicated that this clause is a “legacy clause” and is not currently used or intended to be used in the future. The employer indicated its willingness to provide an undertaking, if required, not to utilise this clause.
[14] The final issue raised with the employer was a request for information relevant to the clause in the Agreement providing for payment of a commission to Drivers in lieu of overtime. The information forwarded by the employer indicates that significant commissions have been paid to Drivers in the roster periods provided. The hours of work were not provided so I have been unable to undertake a comparison with overtime earnings, however I have no basis not to accept the employer’s statement that only a minimal amount of overtime is worked. However, given the potential for commission payments and/or overtime to fluctuate, I consider that the employer’s response does not adequately address this issue.
Does the Agreement pass the better off overall test?
[15] In order for the Agreement to pass the better off overall test, each award covered employee and each prospective award covered employee must be better off overall under the Agreement than if the terms of the relevant modern award applied to them. 4
[16] Accordingly, it is not sufficient that some employees are better off overall. I have earlier found that the rate of pay for a Level 1 Clerk under the Agreement is significantly lower that the rate payable under the Award.
[17] The application of the better off overall test is a global one. It requires that an overall assessment of the position of employees and prospective employees is made taking into account all the terms of the agreement in order to assess whether any identified less beneficial terms of the agreement are compensated for by more beneficial terms of the agreement. Having perused the Agreement I have concluded that there are insufficient benefits within it to compensate for this wages discrepancy.
Undertakings
[18] Section 190 of the Act provides that if a s.185 application for approval of an enterprise agreement is made and FWA has a concern that the enterprise agreement does not meet the requirements in ss.186 and 187, including the requirement that the enterprise agreement passes the better off overall test, FWA may approve the enterprise agreement if a written undertaking from the employer is provided. Such undertaking/s must; meet the identified concern; be not likely to cause financial detriment to any employee covered by the enterprise agreement; or result in substantial changes to the enterprise agreement 5.
[19] As noted earlier, the employer is willing to provide an undertaking in relation to the non-application of the exemption provision in clause 1.5 of the Agreement. If the employer is also prepared to provide appropriate signed undertakings in relation to clause 4.2.3 Drivers Commission in lieu of Overtime 6 and wages for Level 1 and 2 Clerks, the Agreement can be approved, subject to considering the views of the NUW and Agnew D’Arcy Legal in relation to the undertakings.7 Any such undertakings are to be provided by close of business Wednesday 9 March 2011 to [email protected].
DEPUTY PRESIDENT
1 Sub-clauses 3.1.3 and 3.1.4 of the Agreement
2 Sub-clause 3.2.1 of the Agreement
3 Clause 16 of the Award prescribes the following weekly rates of pay:
Level 2 - Year 1 $663.60
Level 2 - Year 2 $676.00
Level 3 $701.00
4 Section 193(1) of the Act.
5 S 190(2) and 190(3) of the Act
6 Perhaps to the effect that the award overtime provisions will apply if they are more beneficial than the commission calculated in accordance with clause 4.2.3 of the Agreement.
7 Section 190(4) of the Act requires that FWA must not accept an undertaking unless FWA has ascertained the views of persons known to be bargaining representatives for the agreement.
<Price code C, PR507126>
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