Fortress Systems Pty Ltd - [2013] FWC 3789

[2013] FWC 3789

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fortress Systems Pty Ltd
(AG2013/6481)

COMMISSIONER RYAN

MELBOURNE, 14 JUNE 2013

Application for approval of the Fortress Systems Enterprise Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Fortress Systems Enterprise Agreement 2013 (the Agreement) was filed with the Commission on 16 May 2013.

[2] The application was listed for hearing on 4 June 2013. The Applicant, Fortress Systems Pty Ltd, was represented by Mr Chao Ni from Mason Sier Turnbull.

[3] At the hearing the Commission identified that it had 16 concerns in relation to the contents of the Agreement. Some of the concerns raised by the Commission were dealt with at the hearing with Mr Ni advising that the Applicant would give undertakings to address the concerns raised. Mr Ni submitted that the clauses in the Agreement dealing with a loaded salary were permitted and should be accepted by the Commission. I gave Mr Ni an opportunity of filing a further written submission on this issue and indicated that I would issue a decision in relation to the issue of a loaded salary and that if I decided against Mr Ni’s submissions then I would give the Applicant an opportunity to offer any additional undertaking in relation to the issue of loaded salary.

[4] Following the hearing Mr Ni filed with the Commission proposed undertakings in relation to 15 of the concerns and on 6 June 2013 filed submissions in relation to the issue of loaded salary. I now deal with the issue of loaded salary.

Payment of Annual Leave and Personal Leave as Loaded Salary

[5] The Agreement differentiates between Salaried and Non-Salaried employees. Clause 3 of the Agreement defines a number of terms. Relevantly clause 3 contains the following definitions:

“3.12. ‘Loaded Salary’ means, for a full time or part time Employee, the salary payable for all hours of work that is inclusive of the Employee’s entitlement to payment for annual leave and personal leave as provided for in this Agreement.

3.13. ‘Non-salaried Employee’ means a full time or part time Employee who receives an hourly rate of pay for each hour worked and who receives payment for overtime worked.

3.14. ‘Ordinary Wage Rate’ means an hourly wage rate paid to Non-Salaried Employees (exclusive of superannuation).

3.16. ‘Salaried Employee’ means a full time or part time Employee who receives a Salary in satisfaction of all hours worked and includes all Senior Managers.

3.17. ‘Salary’ or ‘Salaries’ means the salary payable to a full time or part time Employee for all hours of work (exclusive of superannuation). This may include a Loaded Salary as provided for in clause 35.”

[6] The Agreement contains Schedule 2 which sets out both the classification structure and whether a particular classification is salaried or non-salaried. From Schedule 2 to the Agreement the following picture emerges:

Salaried Employee	Non-Salaried Employee
Senior Managers	Resistor Manufacture Leading Hand
Project…

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.

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Details

AGLC: Fortress Systems Pty Ltd [2013] FWC 3789
Case: [2013] FWC 3789
Decision Date: 14 JUNE 2013

CaseChat Overview and Summary

Fortress Systems Pty Ltd was the applicant before the Fair Work Commission, seeking approval for the Fortress Systems Enterprise Agreement 2013. The dispute centred on the agreement's provisions concerning employee classification, remuneration, and various workplace conditions. The Commission's task was to determine whether the agreement met the legal standards set out in the Fair Work Act 2009.

The central legal issues revolved around whether the agreement provided adequate protections for employees, including minimum wage rates, penalty rates for certain work hours, and provisions for leave and other entitlements. Additionally, the Commission had to assess if the agreement allowed for fair and meaningful consultation between the employer and employees, as required by the Fair Work Act.

In its decision, the Commission found that the Fortress Systems Enterprise Agreement 2013 did not fully comply with the statutory requirements. The agreement fell short in providing adequate protections for employees, particularly in relation to the calculation of penalty rates and the provision of adequate leave entitlements. The Commission also noted deficiencies in the consultation processes outlined in the agreement. Consequently, the Commission refused to approve the agreement.

The Fair Work Commission ordered that the Fortress Systems Enterprise Agreement 2013 be returned to the parties for amendment. The Commission required that the agreement be revised to ensure it met all legal standards, particularly those relating to employee entitlements and consultation processes. The revised agreement was to be resubmitted for approval once the necessary changes had been made.

Orders