Coca-Cola Amatil (Aust) Pty Ltd
[2013] FWCA 2329
•23 APRIL 2013
[2013] FWCA 2329 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement
Coca-Cola Amatil (Aust) Pty Ltd
(AG2013/869)
COCA-COLA AMATIL (AUST) PTY. LTD ENTERPRISE AGREEMENT PREFORM AND CLOSURES PLANT EASTERN CREEK SITE A 2011
Manufacturing and associated industries | |
COMMISSIONER CARGILL | SYDNEY, 23 APRIL 2013 |
Application for variation of the Coca-Cola Amatil (Aust) Pty. Ltd Enterprise Agreement Preform and Closures Plant, Eastern Creek Site A 2011.
[1] An application has been made for approval of a variation to an agreement known as the Coca-Cola Amatil (Aust) Pty. Ltd Enterprise Agreement Preform and Closures Plant, Eastern Creek Site A 2011. The application was made pursuant to section 210 of the Fair Work Act 2009 (the Act)and was made by the employer party to the agreement.
[2] I am satisfied that each of the relevant requirements of sections 210 and 211 of the Act have been met. I approve the variation which is as follows:
1. By inserting into the Table of Contents clause in numerical order the following:
“3.2 Personal / Carer’s Leave”
2. By deleting from clause 1.1 “COCA-COLA AMATIL (Aust) PTY. LTD ENTERPRISE AGREEMENT PREFORM AND CLOSURES PLANT, EASTERN CREEK SITE A 2011” and inserting “COCA-COLA AMATIL (AUST) PTY. LTD ENTERPRISE AGREEMENT PREFORM AND CLOSURES PLANT, EASTERN CREEK SITE A 2011-2015”.
3. By deleting from clause 1.3 “Communication, Electrical Electronic, Energy, Information, Postal and Plumbing Union of Australia (Electrical Division) New South Wales Branch and inserting “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical, Energy and Services - New South Wales Divisional Branch)”.
4. By deleting from clause 1.4 the word “May” and inserting the word “August”.
5. By adding into clause 1.6 “DEFINITIONS’ the following:
“Employee” means permanent directly employed people of the Company.
“Average Ordinary Hours” means in the case of
a) Day Work - 38 hours per week
b) Monday to Friday Shift Work - 38 hours per week
c) 24/7 Shift Work - 42.5 hours per week, comprising 38 hours normal time plus 4.5 additional hours
“24/7 Shift Rate” means the rate paid to a 24/7 Shift worker for working 42.5 hours per week, comprising 38 hours normal time plus 4.5 additional hours.
"Shift Penalties" means penalty rates paid for average ordinary hours outside of nominated span of hours for day work. Shift penalties will be paid on rostered Annual Leave. Personal/Carer's Leave and other approved leave will not attract penalties.
"Shift Roster Penalties" means penalty rates applied to average ordinary hours for an employee working on either the Monday to Friday Shift Roster or the 24/7 Shift Roster. No other penalty rates apply to average ordinary hours for employees on these shift rosters.
Overtime Penalties: Penalties paid for hours worked in addition to average ordinary hours.
6. By deleting the letters “SCC” wherever appearing in clause 2.2 and inserting the letters “CC”.
7. By deleting the words “Industrial Relations matters affecting the running of the site.” entirely from clause 2.2.
8. By deleting the words “Where it may be necessary to mention individuals, such discussion shall always remain confidential to the SCC and such reference shall not be recorded in minutes.” entirely from clause 2.2.
9. By deleting the first two dot points of clause 2.6.1 and the wording in those sentences and inserting a new dot point with the following wording: “Minimum pay rates are detailed in Appendix A which are based on working 38 ordinary hours per week”.
10. By adding two new dot points after the last dot point and before the word “Flexibility” in clause 2.6.1 with the following wording:
- Penalty rates are not cumulative. Only one penalty rate applies at any given time.”
“ Shift Penalties and Shift Roster Penalties will be paid as detailed in Appendix A
11. By inserting into clause 2.6.3 after the words “at least six months” appearing in the first full paragraph the words “and have been assessed and deemed to be competent to perform at that level”.
12. By deleting in its entirety the next paragraph appearing in clause 2.6.3 commencing with the words “Specialist Technician”.
13. By deleting the words “anniversary date of the agreement each year” appearing in clause 2.6.4 and inserting the words “commencement of the first full pay period after 1 August each year”.
14. By deleting the second and third sentence entirely from the second paragraph of clause 2.6.6.
15. By adding into clause 2.6.6 a new paragraph as follows:
“Shift rosters may be rotating with staff moving between day, afternoon and night when these are required”.
16. By deleting the words “ordinary hours” wherever appearing in clause 2.6.6.1 and inserting the words “average ordinary hours”.
17. By deleting section B in clause 2.6.6.1 and inserting the following:
“B) Shift work - Monday to Friday Shift Roster
"An individual may be required to work continuous shift work on a Monday to Friday Shift Roster working 1976 hours per annum averaged out at 38 hours per week.
When working the Monday to Friday roster employees may be required to work an additional 9 minutes per shift for handover which is included in the average ordinary hours.
Any hours additional to the averaged 38 rostered hours over the nominal rostered pattern will attract the appropriate overtime penalty rates.
Following is the default roster but may be subject to change based on business requirements:
18. By deleting the heading “Payment” and following paragraph in clause 2.6.6.1 and inserting:
“Shift Penalty Payments
Where an employee works a Monday to Friday Shift Roster, day, afternoon and night shift attracts a loading of 15% in addition to their minimum rate of pay.
This penalty rate applies exclusively to the Monday to Friday Shift Roster and no other shift penalty or overtime payment shall apply to these average ordinary hours.
This penalty rate appliesduring periods of annual leave but not during personal/carer's leave.”
19. By deleting the words “normally be worked” appearing in the first paragraph of clause 2.6.6.2 and inserting “be the default roster and may be subject to change based on business requirements”.
20. By deleting the table appearing in clause 2.6.6.2 and inserting the following table:
21. By adding immediately following the chart in clause 2.6.6.2 the following new paragraph:
“In order to establish the roster pattern, Company management will consult with employees through the Consultative Committee to review and evaluate roster recommendations. However, the final decision for implementation will rest with the Company's management”.
22. By deleting the word “will” appearing after the words “Day shift” and the words “Night shift” in clause 2.6.6.2 and inserting the word “may”.
23. By deleting all remaining paragraphs in clause 2.6.6.2 and inserting the following:
“i) The average ordinary hours for a full-time shift worker on this pattern will be 42.5 hours per week — averaged over a two week period.
ii) The average ordinary hours will comprise 38.0 hours of normal time and 4.5 hours of overtime.
a. The 38 hours of normal time will be paid at the hourly equivalent of the minimum wage rate as specified in Appendix A.
b. The 4.5 hours of overtime will be paid at 1.75 times the hourly equivalent of the minimum wage rate as specified in Appendix A.
c. The 24/7 Shift Rate will be calculated by added the amounts in (a) and
(b) above and averaging the rate over 42.5 hours.
iii) A shift will ordinarily be no longer than 12 hours and 9 minutes.
iv) Where an employee is requested to work greater than 42.5 hours on average over the two week period the additional hours will be paid at overtime rates specified in Appendix A.
Shift Penalty Payments
Where an employee works a 24/7 Shift Roster, day, and night shift attracts a loading of 30% in addition to their 24/7 Shift Rate of pay.
This penalty rate applies exclusively to the 24/7 Shift Roster and no other shift loading or overtime payment shall apply to these average ordinary hours.
This penalty rate applies during periods of annual leave but not during personal/carer's leave".
24. By inserting after the sub-title “Hours of Work” in clause 2.6.7 the words “Span of Hours - Monday-Friday”.
25. By inserting after the word “work” in the first dot point of clause 2.6.7 the following: “(non-shift)”.
26. By deleting the next two paragraphs in clause 2.6.7 and inserting the following:
- When employees are on Monday to Friday day work, employees will be entitled to take a 30 minute unpaid meal break.
- When employees are on Monday to Friday Shift Roster or 24/7 Shift Roster, employees will be entitled to take a 20 minute paid meal break.
- Employees on a 24/7 Shift Roster (and working 12 hour shifts) will be entitled to take a 30 minute paid meal break in addition to the above 20 minute paid meal break.”
“Meal Breaks
Unless an agreement is reached to the contrary, an employee must not be required to work for more than five hours without a break for a meal. The Company may stagger the time of taking either unpaid or paid meal breaks to meet operational requirements.
The following meal breaks will apply:
27. By adding a new sub-clause to clause 2.6.7 immediately after the sub-paragraph “Meal Breaks” and before the last paragraph in the clause, as follows:
“Rest Breaks
All employees will have a rest period of a minimum 10 consecutive hours between shifts.
In the event of a major breakdown or other event which require excessive hours to be worked a 10 hour rest period will be maintained by deferring the start time of the individuals next shift.”
28. By deleting the heading of clause2.6.8 and replace with “Overtime”.
29. By deleting the words “Shift allowances and” in clause 2.6.8 and replacing the word “overtime” where first appearing with “Overtime”.
30. By deleting sub-paragraphs i), ii) and iii) of clause 2.6.9 and inserting the following:
i) Monday to Friday day work,
ii) Monday to Friday Shift work or
iii) 24/7 Shift work as required.
31. By inserting an apostrophe in clause 2.6.9 after both “7 days” and 24 hours”.
32. By deleting the second dot point appearing in clause 2.6.10 and inserting the following:
- “Employees that are required to commence their shift (whether rostered or
overtime) on a public holiday will be paid 2.5 times their minimum rate of pay for that shift".
33. By deleting the last paragraph appearing in clause 2.6.10.
34. By deleting the word “All” appearing at the beginning of the first paragraph of clause 2.10 and inserting “Generally, all”.
35. By deleting the second and third paragraphs of clause 3.0 and inserting the following:
- For Employees on Monday to Friday - 4 weeks, the equivalent of 152 hours of annual leave each year
- For Employees on 24/7 Shift Roster - 4 weeks, the equivalent of 170 hours of annual leave each year, plus an additional 1 weeks annual leave, the equivalent of 42.5 hours leave when working a full year on 24/7 shift roster. Pro-rata payment will apply when employees have not worked the full year.
“This agreement will provide for the following annual leave:
Example 1
An employee on a 24/7 Shift Roster takes one week of annual leave. If they are rostered on for 3 days of that week, they will have 36.45hrs deducted from their annual leave balance (i.e. 3 x 12.15hr shifts). If they are rostered on for 4 days of that week, they will have 48.60hrs deducted from their annual leave balance (i.e. 4 x 12.15hr shifts).
Example 2
An employee on a Monday to Friday Shift takes one week of annual leave. If they are rostered on for 5 days of that week, they will have 40.75hrs deducted from their annual leave balance (i.e. 5 x 8.15hr shifts). If they are rostered on for 4 days of that week, they will have 32.6hrs deducted from their annual leave balance (i.e. 4 x 8.15hr shifts).
Due to the seasonal nature of the business it is required that the majority of leave taken will be during the non-peak periods of the year. Access to annual leave in peak periods will be available subject to business requirements from customer demands. Such leave will aim to be on a rotational basis from year to year such that individual employee has access to peak season leave as above.”
36. By inserting a new clause as follows:
“3.2 PERSONAL / CARER’S LEAVE
Employees will receive Personal/Carer’s leave as per the National Employment Standards.
Shift penalties and loadings do not apply during this leave type.”
37. By including a comma after the words “The default fund” appearing in the first paragraph of clause 4.0.
38. By deleting Appendix A and inserting the following:
“APPENDIX A - Minimum Wage and Penalty Rates
Minimum Wage Rates - Based on 38 average ordinary hours of work
From | Commencement | Aug 12 | Aug 13 | Aug 14 |
Process Technician Entry Level | $ 60,000.00 | $ 61800.00 | $ 63,808.50 | $ 65,882.28 |
Process Technician | $ 63,000.00 | $ 64,890.00 | $ 64,890.00 | $ 69,176.39 |
Specialist Technician | $ 69,950.00 | $ 72,048.50 | $ 74,390.08 | $ 76,807.75 |
Penalty Rates
Normal Hours | 1.0 | x | Minimum Wage Rate |
Afternoon Shift | 1.15 | x | Minimum Wage Rate |
Night Shift | 1.30 | x | Minimum Wage Rate |
24/5 Mon-Fri Shift Roster | 1.15 | x | Minimum Wage Rate |
24/7 Shift Roster | 1.30 | x | 24/7 Shift Wage Rate |
Overtime Rates Monday - Saturday | |||
Overtime - first 3 Hours | 1.5 | x | Minimum Wage Rate |
Overtime - after 3 Hours | 2.0 | x | Minimum Wage Rate |
Overtime Rates Sunday | x | ||
Overtime | 2.0 | x | Minimum Wage Rate |
Public Holiday Rates | x | ||
Public Holidays | 2.5 | x | Minimum Wage Rate |
Allowances
First Aid Allowance
A first aid allowance will be paid to qualified first aiders who are identified by the Company as being required as a designated first aid attendant. The first aid allowance is $18.00 per fortnight.
Higher Duties Allowance
Effective August 2012, any employee performing Team Leader duties for a period of 4 hours or more, will receive an additional $4.00 per hour and increased in accordance with Clause 2.6.4. All applicable Shift Roster loadings apply to this Higher Duties Allowance.
Meal Allowance
Where an Employee is required to work overtime in excess of one and a half hours (1.5) on any day Monday to Friday inclusive, the Employee will be paid a meal allowance of $12.58 and will be supplied with a further meal allowance after a further four (4) hours overtime has been worked.”
[3] The consolidated version of the Coca-Cola Amatil (Aust) Pty. Ltd Enterprise Agreement Preform and Closures Plant, Eastern Creek Site A 2011- 2015 as varied is attached to this decision.
[4] In accordance with section 216 of the Act the variation operates on and from 23 April 2013.
COMMISSIONER
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