Hyatt Ground Engineering Pty Ltd - [2011] FWA 2293

[2011] FWA 2293

FAIR WORK AUSTRALIA

RECOMMENDATION

Fair Work Act 2009
s.185—Enterprise agreement

Hyatt Ground Engineering Pty Ltd
(AG2011/427)

COMMISSIONER RYAN

MELBOURNE, 13 APRIL 2011

Hyatt Ground Engineering Pty Ltd Enterprise Agreement 2011-2014.

[1] An application for approval of the Hyatt Ground Engineering P/L Enterprise Agreement 2011-2014 (the agreement) was made on 9 March 2011 by the Master Builders Association of NSW as representative for Hyatt Ground Engineering P/L.

[2] The application identified that the substantive provisions of the enterprise agreement were based on the “Master Builders Association of NSW template enterprise agreement” but that no other agreements based on this template had been dealt with by FWA.

[3] I have a number of concerns in relation to this application which are set out below. To assist me in addressing these concerns I have asked a number of questions of the applicant and have requested additional information and material to be filed with FWA.

[4] The Form F16 identified that 19 out of 20 employees appointed the same bargaining representative. If the employer provided any other information, direction or pro forma appointment forms to employees when the Notice of Employee Representational Rights was given out, a copy of such information is to be filed with FWA. The employer is to provide details of the person who has been appointed by the 19 employees as bargaining representative. In particular if the person is an employee of the employer, the position held by that person.

[5] The Form F17 identifies that the voting method used was a telephone vote. Who conducted the telephone vote? What was the question put to each employee?

[6] The Form F17 identifies that the agreement is to apply in every State and Territory. In which State or Territory are employees currently located?

Who will be covered by the Agreement?

[7] The Form F17 identifies that the agreement covers on-site construction workers but that it does not cover administrative or management employees. The terms of the agreement do not appear to be as clear. Clause 2.12 of the agreement defines an employee in the following terms:

“Employee means a person:

(a) employed by the company; and

(b) who performs work nationally throughout Australia; and

(d) has the meaning in the FW Act.”

[8] Paragraph (b) of the definition would appear to exclude from coverage of the agreement any employee who works in only one State or Territory for the employer. It would also exclude employees who work in more than one State or Territory but not in every State and Territory. This is so because the emphasis in paragraph (b) is that work is performed “nationally throughout Australia”. Once this criterion is not met, as will be the case for most employees most of the time, then it would appear that an employee will not be covered by the agreement. Is this how clause 2.12(b) is intended to operate?

[9] Whilst paragraph (b) would…

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

AGLC: Hyatt Ground Engineering Pty Ltd [2011] FWA 2293
Case: [2011] FWA 2293
Decision Date: 13 APRIL 2011

CaseChat Overview and Summary

The case involved Hyatt Ground Engineering Pty Ltd, a company in the construction industry, and its employees represented by the United Voice union. The dispute centred on the interpretation and application of the Enterprise Agreement 2011-2014. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal. The union challenged certain practices of the company, particularly regarding employee entitlements and the classification of workers. The union argued that the company had misclassified some employees, leading to underpayment and improper entitlements.

The primary legal issues before the Commission were whether the company had correctly classified its employees under the terms of the Enterprise Agreement and if it had complied with the entitlements outlined therein. The union claimed that the company had failed to properly classify employees, leading to a range of issues including underpayment, improper allocation of penalty rates, and incorrect classification of roles. The company defended its practices, asserting that it had acted in accordance with the agreement and had made reasonable efforts to classify employees correctly.

The Commission examined the evidence provided by both parties and the terms of the Enterprise Agreement. It considered the classifications and entitlements outlined in the agreement and compared these with the company’s practices. The Commission found that the company had indeed misclassified some employees, leading to underpayment and improper entitlements. It ruled that the company had not complied with the terms of the agreement and ordered the company to rectify the classification errors and compensate affected employees for the underpayments. The company was also directed to take steps to ensure future compliance with the agreement.

The Commission made several orders, including that the company must review and correct the classifications of its employees, pay any outstanding entitlements, and implement measures to prevent future breaches of the Enterprise Agreement. The union was also directed to provide the company with a list of affected employees for the purposes of rectifying the underpayments. This decision reinforces the importance of accurate classification and compliance with enterprise agreements in the workplace.

Orders