Hillston Citrus Pty Ltd
[2010] FWA 956
•17 FEBRUARY 2010
[2010] FWA 956 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/21926)
Agricultural industry | |
COMMISSIONER SMITH | MELBOURNE, 17 FEBRUARY 2010 |
Application for approval of the Hillston Citrus Agreement 2009—2012.
[1] Hillston Citrus Pty Ltd seek approval of an agreement titled Hillston Citrus Collective Workplace Agreement 2009—2012 (the Agreement).
[2] The Agreement was made during the bridging period and as such, amongst other matters, is tested against the no-disadvantage test contained in the Workplace Relations Act 1996. For this purpose Hillston Citrus Pty Ltd state that the relevant award is the Horticultural Industry (State) Award – NSW (the Award).
[3] Putting to one side, for the moment, the National Employment Standards (NES) the Award, as defined in Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) 1, relevantly provided:
(i) A 38 hour week.
(ii) Ordinary hours are Monday to Sunday inclusive.
(iii) Overtime is payable to all time worked beyond ordinary hours at the rate of time and one half for the first two hours and double time after that. Sunday overtime is double time.
(iv) Junior rates are:
Age | Percentage of Adult Rate |
Under 16 | 50 |
At 16 | 60 |
At 17 | 70 |
At 18 | 80 |
At 19 | 90 |
At 20 | Adult rate |
[4] The Agreement put forward for approval provides:
(i) A 40 hour week.
(ii) Overtime is payable after an employee has worked more than 100 hours per fortnight and then at time and one-half for all hours worked.
(iii) Junior rates are:
Age | Percentage of Adult Rate |
18 years and under | 70 |
19 years | 80 |
20 years | 90 |
[5] There are other matters but it is unnecessary for those to be addressed given the clear disadvantage when tested against the pre-existing award which would be suffered by both adult and young workers.
[6] I also do not need to turn to the National Employment Standards.
[7] Before determining the application before me I provided an opportunity for Hillston Citrus Pty Ltd to address these matters.
[8] It is accepted by Hillston Citrus Pty Ltd that the wage rates included in the Agreement are inadequate for the hours clause. Further, I am advised that the hours of work clause is perhaps badly expressed. Increases in hourly rates were proposed by the employer.
[9] I have considered whether or not it is open to me to accept such significant changes and having regard to s.190(3)(b) I have concluded that I cannot and it would be better for the employees to see a redrafted agreement in terms which make the employers position clearer.
[10] If a further agreement is reached some attention needs to be given to preparing a spreadsheet which demonstrates that employees are better off overall with the number of hours that may be worked in excess of 38 hours per week at ordinary rates.
[11] Given its current terms and the fact that significant change is proposed I am of the view that the application of s.190(3)(h) of the Fair Work Act 2009 means that I must decline to approve the agreement.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
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