George Weston Foods Limited T/A Tip Top Bakeries Dry Creek

[2019] FWCA 1484

[2019] FWCA 1484 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

George Weston Foods Limited T/A Tip Top Bakeries Dry Creek
(AG2018/4925)

TIP TOP BAKERIES DRY CREEK, CONSOLIDATED ENTERPRISE AGREEMENT 2017 - 2020

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 14 MARCH 2019

Application for approval of the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2017 - 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by George Weston Foods Limited T/A Tip Top Bakeries Dry Creek. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 20 December 2018.

[3] On 10 January 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 26 February 2019. The undertaking deals with the following topics:

•  The Agreement applies to employees employed at the Dry Creek site or at any successor location within the classifications outlined in Schedules 1 and 2 of the Agreement.

•  The definition of a shift worker contained in clause 6.1 of the Agreement will apply for the purposes of the National Employment Standards (NES).

•  For the purposes of clause 6.1 of the Agreement, annual leave will accrue progressively.

•  For the purposes of clause 6.2 of the Agreement, the company will accept a medical certificate or a statutory declaration as evidence in respect of any day or days which an employee claims sick leave.

•  In relation to clause 3.5.10 of the Agreement, the words “Malingering, inefficiency, neglect of duty or misconduct” will no longer apply. The Applicant will insert the definition of “serious misconduct” as provided for in the Fair Work Regulations2009.

•  For the purpose of clause 4.1 of the Agreement, the Applicant has provided a position descriptions table.

•  In relation to Schedule 1 of the Agreement, the Applicant undertakes that:

“For the purposes of Schedule 1 of the Agreement, the all-purpose weekly rates are calculated on the basis of an employee working 38 ordinary hours each week and are inclusive of tool and boiler allowance.

Employees paid Schedule 1 rates will only be allocated day shifts during ordinary hours of work (between 6:00am and 6:00pm, Monday to Friday, except where altered by up to one hour by agreement at either end of the spread).

For the life of the Agreement, employees who are paid in accordance with Schedule 1, but who are required to work outside of ordinary hours, will be entitled to the following penalties and overtime rates:

(a) For all work done outside of ordinary hours on any day or shift, the overtime rate is time and a half for the first three hours and double time thereafter until the completion of the overtime work;

(b) The rate to be paid to a Schedule 1 employee who works between midnight on Friday and midnight on Saturday is time and a half.

(c) The rate to be paid to a Schedule 1 employee who works between midnight on Saturday and midnight on Sunday is double time.

(d) The rate to be paid to a Schedule 1 employee who works on a public holiday is double time and a half.

For the sake of clarity, the wage rates contained in Schedule 1 do not apply to persons working the rosters described at 5.1.1 and 5.1.2 of the Agreement.”

•  In relation to Schedule 2 of the Agreement, the Applicant undertakes that:

“For the purposes of Schedule 2 of the Agreement, the all-purpose weekly rates do not include time worked additional to the ordinary and overtime hours specified at Schedule 2.

For the sake of clarity, an employee who works hours in addition to their standard 12-hour shift, will be entitled to overtime pursuant to clause 5.1.1(c) of the Agreement.

For the purposes of Schedule 2 of the Agreement, the employer also undertakes not to roster any afternoon or night shift employees for five consecutive afternoon or night shifts.”

•  The specified rate contained in Schedule 3 of the Agreement excludes allowances, penalties and overtime. The Applicant has provided a table setting out the allowances which apprentices are eligible to receive.

•  For the purposes of Schedule 3 of the Agreement, casual employees will be paid a 25% loading on top of the hourly pay rates.

•  For the purposes of Schedule 4 of the Agreement, junior employees are entitled to a tool allowance, boiler allowance, shift penalties and overtime. The Applicant has also provided a table setting out the allowances which junior employees are eligible to receive.

•  For the purposes of Schedule 4 of the Agreement, casual junior employees will also be entitled to a 25% loading on top of the hourly pay rates.

•  At clause 4.2.7 of the Agreement, the word “Award” should be read as “Agreement”.

•  At clause 5.4 of the Agreement, the reference to “clause 6.9” should be read as “clause 5.5”.

•  The Applicant undertakes to provide domestic violence leave on the following terms:

“An employee is entitled to 5 days’ unpaid leave to deal with family and domestic violence in the following terms:

(a) The leave is available in full at the start of each 12 month period of the employee’s employment; and

(b) The leave does not accumulate from year to year;

(c) Is available in full to part time and casual employees.

The company and the employee may agree that the employee may take more than 5 days’ unpaid leave to deal with family and domestic violence.

For the purposes of this provision, family and domestic violence means violent, threatening, or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.

For the purposes of this provision, family member means:

(i) A spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or

(ii) A child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or

(iii) A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.”

•  For the purposes of clause 5.1.3 of the Agreement, the Employer undertakes that it will not introduce alternative shift arrangements where the employees would not be better off overall.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “The Australian Workers’ Union (AWU)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 24 February 2019.

COMMISSIONER

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