FAIR WORK COMMISSION - s.185—Enterprise agreement

[2013] FWC 6998

[2013] FWC 6998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Jasbe Caldermeade Pty Ltd ATF BP Caldermeade Unit Trust and others
(AG2013/1708 and others)

Vehicle industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 13 SEPTEMBER 2013

Application for approval of single-enterprise agreements as per attached Schedule.

[1] Jasbe Caldermeade Pty Ltd applied for approval of the Jasbe Caldermeade Pty Ltd Enterprise Agreement 2013 (the Agreement). The Agreement is in the same terms as a number of other agreements (as per attached Schedule) that were before the Fair Work Commission (the Commission) for approval at the same time. The agreements applied to employees who work in service stations, as general hands, kitchen attendants and console operators as well as assistant managers and managers.

[2] The Shop, Distributive & Allied Employees’ Association (SDA) was a bargaining representative for the Agreement. It was not however a bargaining representative for the other agreements.

[3] For an agreement to be approved the Commission must, amongst other matters not relevant to the approval of these agreements, be satisfied that; the agreement has been genuinely agreed to by the employees 1; the terms of the agreement do not contravene s.55;2 and the agreement passes the better off overall test.3

[4] On 10 July 2013 the SDA advised that it was concerned that the Agreement did not pass the better off overall test.

[5] On 16 July 2013 I wrote to Jasbe setting out a number of concerns about the Agreement. I advised Jasbe that I was concerned that the Agreement did not pass the better off overall test.

[6] On 2 August 2013 Jasbe’s representative provided the Commission with a roster analysis as well as submissions and undertakings addressing some of my concerns. On the same day the SDA provided detailed correspondence setting out their concerns. The applications were heard on 6 August 2013 and the Applicants made further submissions as did the SDA.

Does the agreement passes the better off overall test?

[7] An agreement cannot be approved unless I am satisfied that each award covered employee and each prospective award covered employee would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

[8] The modern award applying to this work is the Vehicle Manufacturing, Repair, Services and Retail Award 2010 4 (the Award).

[9] In making this assessment it is necessary to balance the more beneficial provisions in the Agreement with the less beneficial provisions in the Agreement to arrive at an overall assessment of the Agreement.

[10] In making the assessment it is necessary to examine the position of each employee, however it is possible to examine classes of employees, as I am entitled to assume, in the absence of evidence to the contrary, that if a class of employees is better off, then the individual employee is better off.

1. Rates of Pay

[11] The Agreement rates of pay for employees are higher than the rates in the Award:

Weekly Agreement Rate	Weekly Award Rate	Casual Agreement Rate	Casual Award Rate
General Hand	17.39	16.42	21.82	21.64
Kitchen Attendant	17.39	16.42	21.82	21.64
Console Operators	18.68	17.64	23.31	23.13
Assistant Managers	22.50	20.91	28.12	25.72
Managers	23.75	-	29.68

2. Allowances

[12] Weekly employees are not entitled to any allowances or annual leave loading. The following allowances are payable under the Award:

• Leading hand allowance clause 19.2;



• Meal allowance if working overtime if not notified by a particular time - clause 19.5;



• Travel allowance - clause 19.8;



• First aid allowance- clause 19.9;



• Dirty work allowance- clause 19.12;



• Laundry allowance - clause 23.8; and



• Annual leave loading - clause 29.7.

3. Public Holidays

[13] The Agreement provides for payment for work on public holidays at 185% whereas the Award provides that employees are paid at 200%.

4. Overtime

[14] The Agreement provides that casual employees are paid overtime at 150% of the casual employee’s rate of pay. The Award provides for the payment of overtime for casual employees at a fixed hourly rate if more than ten hours are worked in a day or if more than 38 hours are worked in a week.

[15] The Award provides that permanent employees who work overtime on Sunday or a public holiday must be paid a minimum of three hours at the appropriate rate.

5. Part time employees

[16] The Agreement provides that part time employees must agree in writing at the commencement of employment on the number of hours to be work each week on average over four weeks.

[17] The Award provides that a part time employee must, at the commencement of employment, have an agreement in writing specifying the hours worked each day; which days of the week the employee will work; the actual starting and finishing times each day; and any variation must be agreed in writing.

6. Higher Duties

[18] The Agreement provides for higher duties pay if an employee performs higher duties for more than two hours on one shift. The Award in addition provides for higher duties pay if the employee performs higher duties for less than two hours. The employee is then paid the higher rate for the actual time spent performing higher duties.

7. Annualised salaries

[19] Clause 14.4 of the Agreement provides for an annualised salary which provides for a 40 hour week. Permanent full time employees engaged at assistant manager and manager level can be engaged by agreement on annualised salaries. The SDA submitted that this was inconsistent with the National Employment Standards (the NES) which provide for a 38 hour week. Employees can be required to work reasonable overtime but the SDA submitted that this clause requires salaried employees to work two hours overtime per week without regard to their personal circumstances.

8. Meal Allowance

[20] Unlike the Award, the Agreement does not provide for the payment of a meal allowance or the provision of a meal when the employee works more than 1.5 hours overtime without being notified the previous day.

9. Travelling time

[21] The Agreement provides that an employee required to work at another site will be paid travelling time at their ordinary rate of pay. The Award has a similar provision except that if the travel occurs on a Saturday, Sunday or a public holiday the employee is paid time and half. The Award provides that if the employee is required by the employer to use his or her own vehicle for work purposes then he or she is paid a per kilometre allowance. The Agreement has no such provision.

10. Ten hour break

[22] The Agreement unlike the Award does not provide for a ten hour break after working overtime. Nor does it provide for a penalty if the ten hour break is not provided.

11. Uniforms

[23] Employees are required to pay a $50 deposit for their uniform which is reimbursed upon completion of employment if the uniform is returned in reasonable condition. The Award does not require employees to pay a deposit for their uniform. Further the Award provides for employees to be reimbursed the reasonable costs of laundering the uniforms.

12. Casual Conversion

[24] A casual employee may elect to convert to weekly employment after six months under the Award and the employer is obliged to advise the employee of this right. The Agreement provides for conversion after 12 months and there is no obligation for the employer to inform the employee of this right.

13. Rosters

[25] The Agreement provides that changes to rosters can occur on 24 hours notice. The Award provides that, for permanent employees, rostered hours once fixed, can be varied from day to day but not by more than two hours.

14. Alternating Shifts

[26] The Agreement provides for shift penalties for weekly employees who commence a shift between 6pm and 4am. The Award provides for a variety of shift arrangements including when working alternating shifts. Also the Award provides that employee who works an afternoon or night shift which does not continue for at least five successive working days, or such shorter work cycle as may be worked under clause 37, will be paid at the rate of time and a half for each such shift.

[27] As a result there are occasions when the Agreement hourly rate for particular shifts fall below the Award rates. The penalty rates payable will depend on whether the particular employer is transitioning up to the award penalty rates. However I am required to have regard to the transitional penalty provisions and these penalties will increase during the life of the Agreements.

[28] A comparison for weekly console operators is set out:

Console Operator

Award Afternoon shift	20.82
Agreement afternoon shift	18.68
Award night shift	22.93
Agreement night shift	21.25
Award afternoon and night shifts	21.17
Agreement afternoon and night shift	$18.68 for afternoon shift and $21.25 for night shift
Award Alternating shifts	$19.85 for night shifts and afternoon shifts
Agreement Alternating shifts	$18.68 for afternoon shift and $21.25 for night shift
Shift not continuing for 5 days	$26.46

15. Immediate Family

[29] The definition of immediate family did not include former spouses and former de facto spouses and therefore the provisions in the Agreement on personal leave and compassionate leave are inconsistent with the NES. The SDA contended that the Agreement did not make it clear that a reference to a child in the definition included an adult child.

16. Annual leave

[30] The SDA submitted that it is possible that there are employees who are shift workers as defined in the NES and there is no provision for these workers to receive an additional week’s annual leave.

[31] Further the SDA submitted that under the Agreement employees are paid their annual leave on their base rate of pay which is inferior to the Award provision which provides that the employee must be paid what they would be paid for working ordinary hours including allowances, loadings and penalties paid for all purposes including any over award payment.

17. 12 hour shifts

[32] The Agreement permits employees to work 12 hour shifts without the protections provided in the Award.

18. Redundancy

[33] The Agreement provides that redundancy pay is not payable when there is a transfer of business. The NES provides that the Commission can order an amount of redundancy to be paid if such provision operated unfairly. There is no such provision in the Agreement.

19. Stand down of employees

[34] The Agreement permits the suspension of employees without pay in circumstances that are not provided for in the Award or the Act.

20. The employee’s household

[35] The compassionate leave provision does not extend to members of the employee’s household.

21. Community service

[36] The SDA submitted that the Agreement was not clear that employees in Victoria may be entitled to more paid leave if on jury duty than that provided for in the NES.

Undertakings

[37] The Applicant advised that it would offer the following undertakings:

1. It would amend the definition of immediate family as follows:

“Immediate Family Member means a spouse, former spouse, defacto partner, former defacto partner, child, parent, grandparent, grandchild or sibling of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or former spouse, de facto partner or former de facto partner of the employee”

2. The casual overtime rate would increase to 156% instead of 150%.

3. The Agreement will provide for the Commission to order the payment of redundancy pay as provided in s.122(4) of the Fair Work Act 2009 (the Act).

4. The Agreement will be varied to provide that the suspension of employees will be with pay.

5. Part time employees - it proposed to vary clause 3.2 as follows:

“Employment status will be full time, part time or casual. Part time employee entitlements are pro rata to those of full time employees proportionate to hours worked. Upon commencement of employment of a part time employee, the employer and the employee will agree in writing on a regular pattern of work to be worked each week, on average over 4 weeks. Any variation to the agreed weekly hours of work will be mutually agreed between the employer and the employee, at least 24 hours in advance of the intended change, and recorded in writing.”

As a consequence clause 13.1, the roster clause, will be amended to read as follows:

“As far as practicably possible the employer will draw up a roster 2 weeks in advance and post this in a conspicuous place which is accessible to employees. Changes to rosters may occur in advance and be recorded in writing or with at least 24 hours notice if mutually agreed between the employer and employee.”

It was submitted that should a roster change occur with less than 24 hours notice and/or is not agreed to by the employee then the employee is entitled to overtime.

6. Meal Allowance

A new clause 11.4 is proposed as follows:

“In the event that an employee is requested to work more than 1.5 hours of overtime without having been provided with 24 hours’ notice of the requirement, the employer will provide the employee with a meal whilst working the period of overtime.”

7. Travelling

A revised clause 17.5 is proposed as follows:

“Where an employee is required to work at an alternative site operated by the employer or is required to attend training at a venue other than the employee’s usual workplace, the employee will be paid at their ordinary rate of pay for time spent travelling to and from the alternative site for training venue which is in excess of the employees normal travel time to and from the usual workplace. In addition, the employee will be reimbursed by the employer for any travel costs (to include public transport costs or fuel costs) reasonably incurred in excess of those normally incurred by the employee in travelling to or from the usual workplace.”

8. 10 hour breaks

A new clause 10.4 is proposed as follows:

“Where an employee is rostered to work for eight hours or more, the employee shall be entitled to have at least 10 consecutive hours off duty prior to the commencement of their next shift.”

9. Minimum payment of overtime on Sunday and Public Holidays

A new clause 11.5 is proposed as follows:

“If an employee is required to work overtime on a Sunday or on a public holiday, the employee will be entitled to a minimum payment of three hours’ work at the relevant overtime rate.”

The Applicant’s submissions

1. Part time employees’ hours of work

[38] While accepting that the proposed new clause does not replicate the Award clause, the Applicants submitted that a degree of flexibility in rostering of part-time employees is needed by both the employers and the employees for the efficient and productive functioning of these service stations. It was submitted that the revised clause provides part time employees with regularly rostered hours of work and the entitlement to overtime outside those hours as provided for in the Award.

2. Higher Duties Allowance

[39] The Applicants submitted that generally employees are only required to perform higher duties if those higher duties extend for two hours or more. The only circumstance in which an employee may be required to perform higher duties for less than two hours is to cover a toilet break or other break. It was submitted that to require higher duties to be paid on such occasions would be quite burdensome for employers.

3. Hours of duty after noon on Saturday and all hours worked on Sunday

[40] The Applicants rely upon the roster analysis to show that employees are better off under the Agreement. It was submitted that the Agreement provisions are more beneficial than the Award because the shift penalty continued after midnight on Sunday night.

4. Annualised salaries.

[41] The Applicants submitted that the annualised salaries clause buys out two hours overtime. It is submitted that the requirement that an employee work additional two hours overtime per week is not unreasonable having regard to s.62(2) of the Act.

5. Uniforms

[42] The Applicants submitted that it has found that without the inclusion of such a clause employees are lax about the care of the uniform. The Applicant has built in to the hourly rate a $7.00 per week laundry allowance which it submits is a reasonable amount to launder uniforms.

6. Casual conversion

[43] It was submitted that providing for a 12 month period before a casual employee can convert is reasonable. It was also submitted that as employees have access to the Agreement they are aware of their right to make such an election.

7. Jury Service

[44] The Applicants submitted that the Agreement makes it clear that if the employees have a greater entitlement under the Juries Act 2000 (Vic), then they have such an entitlement.

8. Immediate family

[45] The Applicants submitted that the definition of child in s.17 of the Act makes it clear that when the word child is used in the Agreement it includes an adult child, stepchild or an adopted child.

9. Annual leave

[46] The Applicants do not employ employees who fall within the definition of a shift worker in the Award. In particular, no employee is a seven day shift worker who is regularly rostered to work on Sundays and public holidays.

[47] The Applicants submitted that annual leave is paid at the ordinary rate of pay in the Agreement which includes the relevant allowances and annual leave loading. It would be administratively difficult to calculate the regular shift over each different penalty period in the Agreement so they have taken the view that employees will receive their base pay whilst on annual leave.

10. 12 hour shifts

[48] It is submitted that the Agreement is an agreement reached with the majority of its employees for the implementation of 12 hour shifts. It was submitted that 12 hour shifts are rare and that proper supervision is in place at each site and adequate breaks are provided for all employees.

[49] The Applicants submitted that the undertakings will not cause financial detriment to any employees and did not result in substantial changes to the Agreement and therefore the Agreement should be approved.

Conclusion

[50] The Applicants provided a roster analysis to establish that employees would be financially better off under the Agreement compared with the Award. They took into account the laundry allowance and leave loading. The Agreement provided for employees to be paid amounts above the Award ranging from $.86 to $26.25 per week. The calculations did not factor in any public holidays.

[51] I am not satisfied that, when considered overall, the Agreement approved by the employees passes the better off overall test.

[52] While the undertakings proposed by the employers go some way to rectifying the disadvantage that would be suffered by employees, I am not convinced even with those undertakings that employees would be better off. The increases provided by the Agreement are marginal. It is not clear on the evidence provided that the amounts sufficiently compensate employees. For example none of the examples of shift rosters used for permanent employees in NSW has employees working on Saturday afternoon when employees are paid time and half under the Award but at the base rate under the Agreement until 6pm. It is also not clear on the evidence that the shift penalties of the Award have been appropriately applied. For example the level 2 permanent employee in NSW works one afternoon shift and the penalty is set at 18%. However under the Award the employee is paid at time and a half because the shift work does not continue for at least five successive working days. Further no regard has been had to transitioning up of penalties over the life of the Agreements.

[53] Given the other less beneficial provisions in the Agreement when looked at overall, I do not consider the employees will be better off, if the Agreement with the undertakings was approved.

DEPUTY PRESIDENT

SCHEDULE

Matter No	Applicant	Name of Agreement
AG2013 1709	BP Seaford Pty Ltd	BP Seaford Pty Ltd Enterprise Agreement 2013
AG2013 1711	BP Supremacy Pty Ltd	BP Supremacy Pty Ltd Enterprise Agreement 2013
AG2013 1714	Jasbe Epping Pty Ltd ATF Jasbe Epping Unit Trust	Jasbe Epping Pty Ltd Enterprise Agreement 2013
AG2013 1716	Jasbe North Cranbourne Pty Ltd ATF Jasbe North Cranbourne Unit Trust	Jasbe North Cranbourne Pty Ltd Enterprise Agreement 2013
AG2013 1717	Jasbe North Dandenong Pty Ltd ATF BP North Dandenong Unit Trust	Jasbe North Dandenong Pty Ltd Enterprise Agreement 2013
AG2013 1718	BP Skye Pty Ltd	BP Skye Pty Ltd Enterprise Agreement 2013
AG2013 1719	Jasbe Tarneit Pty Ltd ATF Jasbe Tarneit Unit Trust	Jasbe Tarneit Pty Ltd Enterprise Agreement 2013
AG2013 1720	BP Westernport Pty Ltd	BP Westernport Pty Ltd Enterprise Agreement 2013
AG2013 1722	Enterprise 27 Pty Ltd	Enterprise 27 Pty Ltd Enterprise Agreement 2013
AG2013 1724	Youan Petroleum Pty Ltd	Youan Petroleum Pty Ltd Enterprise Agreement 2013
AG2013 1726	Cuius Pty Ltd ATF Kakatiya Unit Trust	Cuius Pty Ltd Enterprise Agreement 2013
AG2013 1727	D & H Alliance Pty Ltd	D & H Alliance Pty Ltd Enterprise Agreement 2013
AG2013 1728	Jasbe Bundoora Pty Ltd ATF Jasbe Bundoora Unit Trust	Jasbe Bundoora Pty Ltd Enterprise Agreement 2013
AG 2013 1729	Grace Croydon Park Petroleum Pty Ltd	Grace Croydon Park Petroleum Pty Ltd Enterprise Agreement 2013
AG2013 1730	Lotus Vermont Pty Ltd ATF Lotus Vermont Unit Trust	Lotus Vermont Pty Ltd Enterprise Agreement 2013
AG 2013 1731	Lotus G.L Pty Ltd ATF Lotus G.L Unit Trust	Lotus G.L Pty Ltd Enterprise Agreement 2013
AG2013 1732	MAKC Investments Pty Ltd ATF MAKC Investments Unit Trust	MAKC Investments Pty Ltd Enterprise Agreement 2013
AG2013 1734	Nuvvala Pty Ltd ATF Nuvvala Family Trust	Nuvvala Pty Ltd Enterprise Agreement 2013
AG2013 1735	Kaveri Fuels Pty Ltd	Kaveri Fuels Pty Ltd Enterprise Agreement 2013
AG2013 1737	BP East Doncaster Pty Ltd	BP East Doncaster Pty Ltd Enterprise Agreement 2013
AG2013 1753	Bharat Fuels Pty Ltd	Bharat Fuels Pty Ltd Enterprise Agreement 2013
AG2013 1754	Jasbe Point Cook Pty Ltd ATF BP Point Cook Unit Trust	Jasbe Point Cook Pty Ltd Enterprise Agreement 2013

 1   s.186(2) and s.188.

 2   s.186(2).

 3   s.186(2) and s.193.

 4   MA000089.

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