Hendon Semiconductors Pty Ltd

[2019] FWCA 557

[2019] FWCA 557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hendon Semiconductors Pty Ltd
(AG2018/5245)

HENDON SEMICONDUCTORS PTY LTD ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 31 JANUARY 2019

Application for approval of the Hendon Semiconductors Pty Ltd Enterprise Agreement 2018.

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

[2] The matter was allocated to my Chambers on 17 December 2018.

[3] On 19 December 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] Pursuant to s.180(2) & (3) of the Act the Employer is required take certain steps to provide specified material to employees prior to the vote. In this case, the Employer did not provide access to the agreement for 7 clear days, and did not expressly state the location of the vote. Taking into account the information provided to me about the process undertaken (including the 100% participation in the vote), I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1) that the procedural or technical error is minor, and that the employees have not been disadvantaged, and accordingly, there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 17 January 2019. The undertaking deals with the following topics:

•  For the purpose of clause 40 of the Agreement, public holiday provisions will be in line with the National Employment Standards (NES) under the Act, in that the Agreement includes section 114 – 116 of the NES.

•  The casual employment provisions contained in clause 14 of the Agreement will be consistent with the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) and specifically clause 14.14 and 14.15 will be replaced with the following:

“14.13 Casual Employment

14.13.1 Casual employee shall mean an employee that does not work on a regular and systematic basis, they are engaged and paid by the hour. A casual employee, for working ordinary time, shall be paid an Hourly Rate as set out in clause 12.2 of the Agreement, plus casual loading of 25%.

14.13.2 A minimum payment for a casual employee shall be 4 hours per engagement.

14.13.3 A casual employee shall not be entitled to the benefits of clauses:

23 - Annual leave,

24 - Personal (sick and Carer’s) leave

25 - Compassionate leave

40 - Public Holidays, other than payment as provided for time worked

29 - Termination of employment

30 - Redundancy

14.14 Conversion of Casual Employment

14.14.1 A casual employee who has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this agreement during a period of 12 months has the right to elect to have their contract of employment converted to full-time or part-time employment.

14.14.2 The employer will give a casual employee notice in writing of the provisions of clause 14.14.1 within four weeks of the right to elect accruing.

14.14.3 The employee retains their right of election under the clause even if the employer fails to provide notice in accordance with clause 14.14.2.

14.14.4 A casual employee who does not, within four weeks of receiving written notice, elect to convert their contract of employment to full-time or part-time employment will be deemed to have elected not to convert.

14.14.5 Any casual employee having rights under this clause upon receiving notice under clause 14.14.2, or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that they elect to convert their contract of employment to full-time or part-time employment. Within four weeks of receiving such notice the employer must either consent to or refuse the election but must not unreasonably so refuse.

14.14.6 An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to part-time employment, working the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee.

14.14.7 Subject to clause 14.14.6, where a casual employee has elected to convert to full-time or part-time employment, the employer and the employee must discuss and agree upon:

14.14.7.1 whether the employee will become a full-time or a part-time employee; and

14.14.7.2 if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked as provided for in clause 14.7.

14.14.8 A casual employee who has elected to convert to full-time or part-time employment in accordance with this clause may only revert to casual employment by written agreement with the employer.”

•  For the purpose of clause 24 of the Agreement, the Employer undertakes that personal/carer’s leave will be in line with the NES.

•  The Employer acknowledges that in line with s.107(3) of the NES, acceptable evidence should satisfy a reasonable person. Acceptable evidence includes but is not limited to a statutory declaration.

•  Clause 21.2 of the Agreement will incorporate s.326 of the Act to the effect that “subject to the provisions of section 326 of the Fair Work Act”, the employer may deduct from any amount required to be paid to an employee under this clause the amount of any overpayment of wages or allowances.

•  Clause 39.1 of the Agreement states that employees are entitled to parental leave in accordance with the NES. The intent of clause 39.1 of the Agreement is to incorporate the provisions contained in Division 5 (s.67 – s.85) of the Act. The Employer confirms that pursuant to s.76 of the Act, an employee’s option to apply for an extension for a further 12 months leave is incorporated into the Agreement.

•  For the purpose of clause 20 of the Agreement, the minimum engagement period for overtime will be as per clause 40.7 and 40.8 of the Award. Furthermore, reasonable additional hours shall be in line with clause 40.2 of the Award.

•  In relation to clause 17 of the Agreement, which relates to shift work, afternoon and night shift shall be in line with clause 37.1 of the Award:

“Clause 17.1.1 4:00pm to 12:00am (afternoon Shift)

Clause 17.1.2 12:00am to 8:00am (night shift)”

•  For the purpose of clause 17.3 of the Agreement, employees who work an afternoon or nightshift, of at least 5 successive shift, will be paid a 15% shift allowance as per clause 37.3(a) of the Award.

•  Clause 17 of the Agreement shall incorporate all the shift provisions under clause 37 of the Award.

•  The Employer confirms that there is a typographical error contained in Schedule 1 of the Agreement and it should be read as follows:

“40.5 Call Back

40.6 Standing By

40.4 Rest Period”.

[6] 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.

[7] 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.

[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 7 February 2022.

COMMISSIONER

 1  [2019] FWCFB 318.

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