Hollsam Breads Pty Ltd - [2010] FWA 2038

[2010] FWA 2038

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hollsam Breads Pty Ltd
(AG2009/24275)

COMMISSIONER GOOLEY

MELBOURNE, 11 MARCH 2010

The Hollsam Breads Pty Ltd Enterprise Agreement 2009.

[1] This is an application pursuant to section 185 of the Fair Work Act 2009 (the FW Act) for approval of the Hollsam Breads Pty Ltd Enterprise Agreement (the Agreement).

[2] The Statutory Declaration provided by the employer did not indicate the date on which the last notice to employees under s.173(1) had been provided. Consequently on 22 January 2010 I wrote to Ms Lorelle Wells, the director of Hollsam Breads Pty Ltd and sought additional information about the date that the notice of representational rights had been given to employees. I further raised with Ms Wells concerns I had that the Agreement may not pass the no disadvantage test as the Agreement provided for lesser entitlements than provided in the Shop Distributive and Allied Employees Association – Victorian Shops Interim Award 2000 1 (the Retail Award) and the Bread Trade (Victoria) Award 19992 (the Bread Award).

[3] On 30 January 2010 Ms Wells advised that the notice of representational rights had been provided to employees on 11 November 2009 along with copies of the Agreement and that on that date employees were told that they would vote on the Agreement on 15 December 2009. From her response it was clear that the procedural requirements of the FW Act had been complied with. However as I still had concerns that the Agreement did not satisfy the no disadvantage test the application was set down for hearing on 23 February 2010 and Ms Wells attended the hearing.

[4] Ms Wells in her letter of 30 January 2010 and in her submissions at the hearing provided further details about the operation of her business.

[5] Despite the fact that the Agreement provided for lesser entitlements than provided under the reference instruments, in her statutory declaration Ms Wells advised that the Agreement did not contain any terms and conditions that were less beneficial than any terms contained in the reference instruments.

[6] The Agreement provides that employees will be full time or part time. At the hearing of this application Ms Wells was not able to advise if her retail employees were part-time or casual 3. If they were part-time they have been paid under an agreement which provided for a loaded rate which included any entitlements to sick pay and holiday pay4.

[7] The Agreement makes no provision for the casual employees’ rates or conditions.

[8] Having considered the response of the employer I have identified some of the more significant differences between the Retail and Bread Awards and the Agreement.

Hours of Work/Overtime/Penalties/Public Holidays

[9] The Agreement provides that ordinary hours will not exceed 38 hours per week averaged over 52 weeks. There is no minimum call for employees and no restriction on the number of hours an employee can be…

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

Case: [2010] FWA 2038
Decision Date: 11 MARCH 2010

CaseChat Overview and Summary

In the case of Hollsam Breads Pty Ltd, the Full Bench of the Fair Work Commission was called upon to determine the validity of an enterprise agreement between Hollsam Breads Pty Ltd and its employees. The dispute arose from the company's assertion that the agreement had been terminated by operation of law, due to the failure of the parties to comply with a specific clause regarding the review of the agreement. The company argued that the absence of a review process rendered the agreement ineffective and that, consequently, the employees were no longer bound by its terms.

The central legal issue before the Commission was whether the failure to conduct a review of the agreement as mandated by a particular clause resulted in the termination of the agreement by operation of law. This question required the Court to interpret the specific terms of the agreement and the implications of the non-compliance with the review process. Additionally, the Court needed to determine whether the agreement's continued enforceability was contingent upon the completion of the review.

The Full Bench of the Commission found that the absence of a review did not automatically terminate the enterprise agreement. The Court held that the review clause was not a condition precedent to the agreement's validity and that the failure to conduct a review did not render the agreement ineffective. The Commission concluded that the agreement remained in force unless and until it was properly terminated in accordance with the Fair Work Act 2009. The decision underscored the importance of distinguishing between the requirements for the agreement's initial validity and the consequences of non-compliance with specific provisions within the agreement.

Orders