Douglas Labour Services Pty Ltd - [2010] FWA 555

[2010] FWA 555

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Douglas Labour Services Pty Ltd
(AG2009/16529)

COMMISSIONER LEWIN

BRISBANE, 10 FEBRUARY 2010

Douglas Labour Services Pty Ltd Agreement 2009.

The application

[1] This decision concerns an application made by Douglas Labour Services Pty Ltd for approval of the Douglas Labour Services Pty Ltd Agreement 2009 (the agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) on 14 October 2009. The file was received in my chambers on 23 November 2009. Approval of the Agreement is subject to the Agreement satisfying the no-disadvantage test as set out in Schedule 7, Part 2, Division 1 of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009.

[2] The reference instruments to be used for the purposes of comparison for determining whether or not the Agreement passes the no-disadvantage test are the Building Services (Victoria) Award 2003 (AP822844CRV) and the Cleaning and Building Services Contractors (State)–Award (NSW)–AN120123. Upon consideration of the Agreement, in light of the provisions of the reference instruments, I was concerned that the Agreement did not meet the no-disadvantage test. The matter was listed for Hearing at 4.00 pm on 17 December 2009.

The proceedings

[3] At the Hearing on 17 December 2009 Mr Hunter and Ms Griffiths appeared on behalf of the company. The employees were not represented.

[4] At the Hearing I expressed my view that while some positive differences between the Agreement and the reference instruments in the rates of pay were apparent, I was not inclined to approve the Agreement because it was my view that the Agreement did not, looked at overall, pass the no-disadvantage test. The company representatives were provided with a copy of a synopsis prepared in relation to various aspects of the agreement which gave rise to the concerns that the Agreement did not meet the no-disadvantage test. Those concerns about the terms of the Agreement are summarised below:

the rates of pay for day shift workers;

the treatment of part-time working penalties in relation to hours of part-time work;

the operation of an annualised salary provision;

the operation of shiftwork provisions;

the existence of a trainee or an entry level classification and rate of pay in the Agreement which does not exist in the reference instruments and which is lower than the lowest rate of pay in the reference instrument;

the lack of provision of night shift penalties for casual employees; and

the existence of junior rates of pay where none are provided for under one of the reference instruments.

[5] At the Hearing, on my understanding, Mr Hunter who appeared for Douglas Labour Services Pty Ltd acknowledged the basis of the Tribunal’s concerns. It was suggested at the Hearing that the Company could propose undertakings to address the deficits that the Agreement faced in passing the no-disadvantage test for the consideration of the Tribunal. Section 190 of the Act contains provisions for the Tribunal to accept undertakings…

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 Douglas Labour Services Pty Ltd

Details

AGLC: Douglas Labour Services Pty Ltd [2010] FWA 555
Case: [2010] FWA 555
Decision Date: 10 FEBRUARY 2010

CaseChat Overview and Summary

Douglas Labour Services Pty Ltd was a party in a dispute that went before the Fair Work Commission. The nature of the dispute involved the interpretation and application of the Douglas Labour Services Pty Ltd Agreement 2009, which is a registered agreement under the Fair Work Act 2009. The central issue was whether certain provisions of the agreement allowed for the unilateral variation of employment conditions by the employer, Douglas Labour Services Pty Ltd. The dispute arose when the company sought to implement changes to the employees' working conditions without adhering to the stipulated processes outlined in the agreement.

The legal issues before the commission centred around the proper interpretation of the agreement's provisions, specifically those relating to the modification of employment conditions. The commission had to determine whether the agreement permitted the employer to make changes to the employees' conditions of employment unilaterally, or whether it required a formal process to be followed, including potential negotiation with the relevant union. The interpretation of these clauses was pivotal as it would determine the rights and obligations of both the employer and the employees under the agreement.

The commission, after considering the language of the agreement and relevant legal principles, concluded that the agreement did not provide for unilateral changes to employment conditions. The commission emphasised the importance of adhering to the processes outlined in the agreement, which included provisions for negotiation and consultation. The decision was based on the principle that any changes to the conditions of employment must be in accordance with the agreement, and any deviation could lead to unfair labour practices. The commission's decision was grounded in the need to protect the rights of the employees as stipulated in the agreement.

The final orders of the commission required Douglas Labour Services Pty Ltd to comply with the stipulated processes for any future changes to employment conditions. The company was directed to negotiate with the relevant union in good faith and to provide the necessary information to the employees as required by the agreement. This decision reinforced the importance of adherence to agreed processes in employment relations and highlighted the commission's role in ensuring fair practices in the workplace.

Orders