Hydraulic & Pneumatic Pty Ltd

[2014] FWCA 5276

[2014] FWCA 5276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hydraulic & Pneumatic Pty Ltd
(AG2014/6887)

HYDRAULIC & PNEUMATIC PTY LTD, AUSTRALIAN PAPER (MARYVALE MILL) CERTIFIED AGREEMENT 2014-2015

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 4 AUGUST 2014

Application for approval of the Hydraulic & Pneumatic Pty Ltd, Australian Paper (Maryvale Mill) Certified Agreement 2014-2015.

[1] An application has been made for approval of an enterprise agreement known as the Hydraulic & Pneumatic Pty Ltd, Australian Paper (Maryvale Mill) Certified Agreement 2014-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Hydraulic & Pneumatic Pty Ltd. The agreement is a single-enterprise agreement.

[2] The Agreement does not contain a consultation term with the content required by s.205(1) and (1A), Accordingly, in accordance with s.205(2), the model consultation term contained in Schedule 2.3 of the Fair Work Regulations 2009 is taken to be a term of the agreement and is appended at Appendix A.

[3] Clause 20 of the Agreement contains a provision in sub-clause 20.7 which puts a cap of 10 days on the entitlement to sick/personal carer’s leave in any 12 months period.

[4] The entitlement to personal/carer’s leave is found in s.96 of the Act which provides as follows:

“96 Entitlement to paid personal/carer’s leave

Amount of leave

(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.”

[5] Sub-clause 20.7 has the effect of excluding the operation of part of the NES, namely s.96, and creating a detrimental effect on employees in relation to their NES entitlements.

[6] Sections 55 and 56 of the Act deal with this issue.

“55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

56 Terms of a modern award or enterprise agreement contravening section 55 have no effect

A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”

[7] The provision in sub-clause 20.7 of the Agreement is a term of the Agreement which contravenes s.55(2) and in consequence is a term of the Agreement which has no effect pursuant to the operation of s.56.

[8] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54(1), will operate from 11 August 2014. The nominal expiry date of the Agreement is 30 September 2015.

COMMISSIONER

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APPENDIX A