Hunter Bottling Company Pty Ltd

[2014] FWCA 8103

[2014] FWCA 8103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Hunter Bottling Company Pty Ltd
(AG2014/8003)

HUNTER BOTTLING COMPANY PTY LTD COLLECTIVE AGREEMENT 2011 "BOTTLING LINE" (CASUAL STAFF)

Food, beverages and tobacco manufacturing industry
COMMISSIONER STANTON	NEWCASTLE, 14 NOVEMBER 2014

Application for variation of the Hunter Bottling Company Pty Ltd Collective Agreement 2011 "Bottling Line" (Casual Staff).

[1] An application has been made for approval of a variation to an enterprise agreement known as the Hunter Bottling Company Pty Ltd Collective Agreement 2011 “Bottling Line” (Casual Staff) (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by the Hunter Bottling Company Pty Ltd. The Agreement is a single enterprise agreement.

[2] The variation can be found at Attachment 1 to this decision.

[3] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met.

[4] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 14 November 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code C, AE889341  PR557761>

Attachment 1 - Copy of Variation

Variation to Hunter Bottling Company Pty Ltd Collective Agreement 2011 “Bottling Line” (Casual Staff)

The purpose of this variation is to extend the term of the Agreement by 12 months.

1. The nominal expiry date in clause 3 of the Agreement should be deleted and the date, 30 September 2015 should be inserted.

2. The value of the reimbursement for safety boots in clause 14 has been increased from $70 to $90.

3. The uniform issue in clause 14 now includes a Company jumper.

4. Appendix A – Rates of Pay should be deleted and replaced with the current Award rates of pay as follows:

APPENDIX A – PAY RATES

2014 Pay Rates from 1^st July

Grade 1 - $21.3875

Grade 2 - $22.3125

Grade 3 - $23.2375

Grade 4 - $24.5500

Grade 5 - $26.0875

Hunter Bottling Company Pty Ltd Collective Agreement 2011 “Bottling Line and warehouse” (Casual Staff)

Hunter Bottling Company believes in the fair treatment and equality of all employees, we are committed to encouraging job satisfaction and on the job training to ensure the moral and security for our employees. No employee shall be discriminated against regardless of their gender, martial status, religion, sexual persuasion or ethnicity.

PART 1 - INTRODUCTION

1. Parties

The parties to this Agreement are:

(i) Hunter Bottling Company ABN:56 111 967 116

(ii) Employees of Hunter Bottling Company as described in Clause 2 of this agreement.

(iii) The Australian Workers Union, Newcastle, Central Coast and Northern Regions Branch.

1. Scope of the Agreement

This agreement applies to all casual employees of Hunter Bottling Company who are primarily engaged in, or in connection with the bottling and packaging of wine product or Olive oil. This agreement will replace any current agreements and incorporate the terms of the Wine Industry Award 2010. To the extent of any inconsistencies this agreement will prevail over the related Award provisions.

This Agreement will not apply to Managers and/or Permanent employees.

2. Date and duration of Agreement

This agreement will take effect seven days after approval from FWA with a nominal expiry date of 30 September 2015.

3. Responsibilities of the Parties

Both parties undertake to adhere to the following:

(i) HBC has a responsibility to manage the site and operations in a fair and reasonable manner in the best interest of the parties. In doing so the Company is responsible for the provision of a safe working environment, the introduction of appropriate technology and the training and development of the skills and career paths of its employees.

(ii) HBC will ensure that staff will receive adequate training and ongoing supervision however, should the staff member be unable to maintain the standard expected, HBC reserves the right to return such employee to their previous position and pay rate. HBC will continually review and report to staff in regard to their performances/rework/downtime and the quality of their work.

(iii) Employees have a responsibility to adopt safe work practices, to adopt the implementation of relevant technology, to improve their skills consistent with their capabilities and aspirations and to work in a cooperative manner. In doing so they shall strive to enhance productivity, improve and work quality and the delivery of customer service and achieve greater competitiveness for the company.

(iv) Employees will be expected to use initiative whilst in the workplace and ensure that time is not wasted on the production line.

(v) Should an employee continually reject shifts or be absent from work immediately prior or after a weekend or public holiday without reasonable cause or consent, future shifts may be affected and the Company will give priority to those employees available and willing to work scheduled shifts.

PART 2 – HOURS OF WORK AND TRAINING

1. Training and Development

Hunter Bottling Company is committed to the training of employees, should Hunter Bottling require staff to receive additional training HBC will cover any costs relating to the additional training. Any training and/or fees must be approved by your supervisor and the General Manager prior to commencement. Hunter Bottling management will use its discretion when nominating who and when to train for additional and/or progressive positions.

2. Hours of Work

Contract bottling is reliant on the requests and demands of our customers and the climate of the industry. Hunter Bottling Company will, when required, work a 24 hour, 5 day a week rotational roster. Occasionally on customer demand, Hunter Bottling may require staff to work weekends and overtime.

Hunter Bottling Company works on a maximum of 8 hours per day but not more than 10 hours per day unless by prior agreement between the employee and Hunter Bottling Company.

3. Shift Workers

Employees covered by this agreement, that are required to work afternoon or night shifts will be paid a 15% and 25% loading respectively for all ordinary hours worked on such a shift.

4. Overtime

Overtime is calculated on a daily basis and paid at time and a half for the first two hours and double time thereafter for Day Shift workers.

Overtime will be paid at the rate of double time for any time worked over 8 hours for Afternoon and Night shift.

5. Breaks – Meal Crib

The timing of the breaks will occur in a manner which is the least disruptive to the duties of employees and which best suits the needs of their team, the break time will be advised by the supervisor on shift.

A day shift employee is entitled to a paid meal break of 30 minutes after 5 hours, and up to 6 hours upon mutual agreement, of work (this will not be classed as time worked).

An employee on afternoon or night shift is entitled to a paid meal break of 30 minutes after 5 hours, and up to 6 hours upon mutual agreement, of work (this shall be treated as time worked)

Employees working more than 4 ordinary hours shall be entitled to a paid 15 minute crib break to be taken at a time so as to not disrupt operations.

PART 3 – REMUNERATION

6. Rates of Pay

The minimum ordinary rates of pay applicable are specified in Appendix A – Rates of Pay.

The rates of pay in Appendix A will be adjusted in line with any change in the Award rates of pay.

7. Payment of wages

Except as otherwise provided payment of wages will be made weekly in arrears on the Tuesday of the proceeding week, by direct credit to the employee’s nominated bank account. HBC rostered production week and the pay week will be inline.

Allowances, superannuation contributions and authorized employee deductions shall be confirmed by pay slip.

8. Deductions

The Company will deduct from the employee’s pay those deductions that have been duly authorized by the employee.

On termination of employment or at such other times as the Company may require, HBC may make reasonable deductions from an employee’s pay after prior consultation for the value of any unreturned Company property, overpayment or any other debt the employee owes HBC. Any dispute arising from this provision shall be addressed in accordance with the disputes procedure.

PART 4 - BENEFITS

9. Superannuation

All employees are eligible for superannuation contributions as required by the Superannuation Guarantee Levy as maybe varied from time to time.

The current applicable level of Company contribution is 9.50% of an employee’s ordinary rate of pay as set out in Appendix A. Superannuation contributions will be directed into the employee’s nominated scheme. Employees may also elect to have additional superannuation contributions deducted from their pay.

Salary continuance and life insurance is offered as part of the HBC superannuation policy and can be arranged by consultation with our superannuation consultant.

10. Uniforms

On commencement, all employees are required to attend work wearing clothing that is suitable for the work being performed. Employees will be required to wear:

● Over vests (supplied by HBC)

● Cap (supplied by HBC)

On completion of the introductory level, and on presentation of an appropriate receipt, HBC will reimburse each employee for the purchase of his or her safety boots to the value of $90.00. Safety footwear and uniforms will be replaced on an as required basis, provided that the items to be replaced are presented at the time of the request and upon receipt of purchase.

HBC will supply each employee with the following items of uniforms to each employee upon completion of the introductory period, these will be issued on the annually, on the anniversary of the employees first uniform allocation:

● 3 shirts

● 1 beanie

● 1 Jumper

Employees are required to wear the Company supplied uniform when performing work in accordance with the agreement and will be required to launder the uniform at his or her own expense.

All uniforms must be returned on termination with HBC and all replacement uniforms will be at Hunter Bottling Company’s discretion.

14.1 Prescription safety glass

Where an employee is required to wear prescription eye wear, HBC will supply Safety over-glasses for each employee. After 12 months continuous employment at HBC with a minimum of 1000 hours worked, employees can be assessed for Prescription safety glass. HBC may provide a subsidy for a portion of the cost.

PART 5 HEALTH & SAFETY

1. Health and Safety

Please refer Health and Safety Policy

The company agrees to supply any safety equipment required by employees, in accordance with occupational health and safety requirements.

HBC will provide appropriate first aid facilities. Where the Company appoints an employee as a designated first aider the employee will be paid an allowance in line with the modern award. Should an employee wish to complete a first aid certificate in their own time and at their own expense HBC will also pay them the allowance.

PART 6 LEAVE

2. Public Holidays

Unless otherwise agreed, the recognized holidays are:

● New Year’s Day

● Australia Day

● Good Friday

● Easter Sunday

● Easter Monday

● Anzac Day

● Queen’s birthday

● Labour Day

● Christmas Day

● Boxing Day

● Any other day gazette as a public holiday in lieu of one of the above mentioned days.

An employee may be required to work any of the recognized public holidays in accordance with their roster. Accordingly where an employee is required to work on a public holiday they will be paid at the rate of double time and a half for all the time worked on that day.

In lieu of the above an employee may elect to be paid at ordinary rates of pay for work performed on a public holiday and to receive a day in lieu. Such a day in lieu is to be taken at a mutually agreed time and to be paid for at ordinary rates of pay.

17. Signatures of the Parties

APPENDIX A – PAY RATES

2013

Grade 1 - $20.84

Grade 2 - $21.74

Grade 3 - $22.65

Grade 4 - $23.50

Grade 5 - $24.56

2014 Pay Rates from 1^st July

Grade 1 - $21.3875

Grade 2 - $22.3125

Grade 3 - $23.2375

Grade 4 - $24.5500

Grade 5 - $26.0875

CONSULTATION APPENDIX

(1) This terms applies if:

(a) The employer has made a definite decision to introduce a major change to production, program, organization, structure, or technology in relation to its enterprise; and

(b) The change is likely to have a significant effect on employees of the enterprise.

(1) The employer must notify the relevant employees of the decision to introduce the major change.

(2) The relevant employees may appoint a representative for the purposes of the procedures in the term.

(3) If:

(a) A relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) The employee or employees advise the employer of the identity of the representative; the employer must recognize the representative.

(1) As soon as practicable after making its decision, the employer must:

(a) Discuss with the relevance employees:

(i) The introduction of the change; and

(ii) The effect the change is likely to have on the employees; and

(iii) Measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(a) For the purposes of the discussion – provide, in writing, to the relevant employees:

(i) All relevant information about the change including the nature of the change proposed; and

(ii) Information about the expected effects of the change on the employees; and

(iii) Any other matters likely to affect the employees.

(1) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(2) The employer must give prompt and genuine consideration to matters raised about major change by the relevant employees.

(3) If a term in the collective agreement provides for a major change to production, program, organization, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.

(4) In this term, a major change is likely to have a significant effect on employees if it results in:

(a) The termination of the employments of employees; or

(b) Major change to the composition, operation or size of the employer’s workforce or to the skills required of the employees; or

(c) The elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d) The alteration of hours of work; or

(e) The need to retrain employees; or

(f) The need to relocate employees to another workplace; or

(g) The restructuring of jobs.

(1) In this term, relevant employees means the employees who may be affected by the major change.

DISPUTE RESOLUTION APPENDIX

(1) If a dispute relates to:

(a) A matter arising under the agreement; or

(b) The National Employment Standards;

This term sets out procedures to settle dispute.

(1) An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

(2) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.

(4) Fair Work Australia may deal with the dispute in 2 stages:

(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) If Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

Note If fair work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

(1) While parties are trying to resolve the dispute using the procedures in this term:

(a) Generally the status Quo will remain until the matter has been finalized.

(b) An employee must continue to perform his or her work as he or she would normally do unless he or she has a reasonable concern about an imminent risk to his or her safety; and

(c) An employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace unless:

(i) the work is not safe; or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the employee to perform; or

(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.

(1) The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.

FLEXIBILITY APPENDIX

(1) An employer and employee covered by this collective agreement may agree to make and individual flexibility arrangement to vary the effect of terms of the agreement if:

(a) The agreement deals with 1 or more of the following matters:

(i) arrangements about when work is performed;

(ii) overtime rates;

(iii) penalty rates;

(iv) allowances;

(v) leave loading; and

(b) the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and

(c) the arrangement is genuinely agred to by the employer and employee.

(1) The employer must ensure that the terms of the individual flexibility arrangement:

(a) Are about permitted matters under section 172 of the Fair work Act 2009; and

(b) Are not unlawful terms under section 194 of the Fair work Act 2009; and

(c) Result in the employee being better off overall than the employee would be if no arrangement was made.

(1) The employer must ensure that the individual flexibility arrangement:

(a) Is in writing; and

(b) Includes the name of the employer and employee; and

(c) Is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and

(d) Includes the details of

(i) the terms of the collective agreement that will be varied by the arrangement; and

(ii) how the arrangement will vary the effect of the terms; and

(iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

(e) States the day on which the arrangement commences.

(1) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

(2) The employer of employee may terminate the individual flexibility arrangement;

(a) By giving no more that 28 days written notice to the other party to the arrangement; or

(b) If the employer and employee agree in writing – at any time.