DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Deicorp Pty Ltd
(AG2018/1320)

COMMISSIONER LEE

MELBOURNE, 16 OCTOBER 2018

Application for approval of the Deicorp Pty Ltd Enterprise Agreement 2018-2022 - not approved.

Introduction

[1] An application has been made for approval of an enterprise agreement known as the Deicorp Pty Ltd Enterprise Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Deicorp Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

Background

[2] The application was lodged with the Fair Work Commission (the Commission) on 5 April 2018. The application was allocated to Commissioner Gregory on 6 July 2018 and on 27 July 2018 a number of concerns were raised in relation to the Agreement with the Applicant. This included issues relating to pre-approval requirements, the National Employment Standards (NES) and the application of the Better off Overall Test (BOOT) to the Agreement. On 10 August 2018 the Applicant provided a response to the Commission which included proposed undertakings.

[3] On 17 August 2018 the application was allocated to my chambers. On 31 August 2018 correspondence was sent from the Commission raising further issues in relation to Agreement and the proposed undertakings, including a concern that clause 12.1 of the Agreement (which is titled Notice of Termination – Full Time & Part Time Employees) provided for one days’ notice of termination at clause 12.1.1, which is inconsistent with the NES. On 4 September 2018 the Applicant provided revised additional undertakings, two of which referred to daily hire employees.

[4] Clause 4 of the Agreement is titled Contract of Employment and contains the following clauses:

“4.1 Engagement of Employees

4.1.1 Employees under this Agreement shall be employed in one of the following categories:

(a) Full Time Employees;

(b) Part Time Employees;

4.1.2 At the time of engagement, the Company and the Employee will agree in writing:

(a) Whether the Employee is to be engaged on a Full Time, Part Time or Casual basis….”

[5] It is apparent that daily hire employment is not contemplated in the Agreement. Correspondence was sent to the Applicant on 11 September 2018 conveying my concern that accepting an undertaking that allows for engagement of employees as daily hire is likely to result in substantial changes to the Agreement.

[6] The matter was listed for hearing before me 20 September 2018. Mr Skinner appeared on behalf of the Applicant and explained that the Applicant did not intend to change the nature of employment and it was a typographical error that daily hire employees were not included in the Agreement. It was submitted that the error occurred when he was retyping the terms of the Applicant’s previous Agreement from a PDF format to a Word format.

[7] Clause 4 of the previous Agreement is titled Contract of Employment and contains the following clauses at 4.1 and 4.2:

“4.1 Engagement of Employees

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.

Continue reading Deicorp Pty Ltd

Details

AGLC: Deicorp Pty Ltd [2018] FWC 6206
Case: [2018] FWC 6206
Decision Date: 16 OCTOBER 2018

CaseChat Overview and Summary

Deicorp Pty Ltd was the applicant seeking approval for the Deicorp Pty Ltd Enterprise Agreement 2018-2022, a collective agreement between the company and its employees. The applicant sought the Fair Work Commission's (FWC) approval under the Fair Work Act 2009. The case involved the employer's challenge to the agreement, arguing it did not meet the requirements for direct registration. The matter was heard before the Fair Work Commission.

The legal issues before the Commission were whether the agreement met the statutory requirements for direct registration, specifically if it contained terms that were contrary to public policy or failed to provide for minimum entitlements. The Commission needed to determine if the agreement was consistent with the Fair Work Act and whether it provided for fair and reasonable terms for both the employer and employees.

In examining the agreement, the Commission found several provisions that contravened public policy and did not provide for the minimum entitlements required by the Fair Work Act. The agreement contained clauses that permitted the employer to unilaterally alter the employees' working arrangements and conditions, which the Commission considered to be contrary to public policy. Additionally, the agreement failed to provide for minimum entitlements such as paid parental leave and notice of termination. These findings led the Commission to conclude that the agreement did not meet the criteria for direct registration.

Consequently, the Commission did not approve the Deicorp Pty Ltd Enterprise Agreement 2018-2022. The agreement was not registered, and the employer and employees were not bound by its terms. The decision underscores the importance of ensuring that enterprise agreements comply with the Fair Work Act, providing fair and reasonable terms for all parties involved.

Orders