Inghams Enterprises Pty Limited - [2012] FWA 8668

[2012] FWA 8668

FAIR WORK AUSTRALIA

DECISION

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

Inghams Enterprises Pty Limited
(AG2012/10901)

COMMISSIONER MCKENNA

SYDNEY, 23 OCTOBER 2012

Inghams Enterprises (Byron Bay) Processing Enterprise Agreement 2012.

[1] Inghams Enterprises Pty Limited (“Inghams”) has made an application, pursuant to s.185 of the Fair Work Act 2009 (“the Act”), for the approval of an enterprise agreement titled the Inghams Enterprises (Byron Bay) Processing Enterprise Agreement 2012 (“the Agreement”). The Agreement contains a provision with respect to annual leave loading that reads as follows:

“7.2.4 Annual Leave Loading

(a) The loading is the amount payable for the period of leave at the rate of 20% of the appropriate weekly time rate of pay prescribed by this Agreement for the classification in which the employee was employed immediately before commencing annual leave. It shall not include the amount prescribed for allowances, including shift allowances, penalty rates, overtime or any other payments.

(b) This clause extends to an employee who is given and takes annual leave and who would have worked as a shift worker if the employee would not have been on holidays, provided that if the amount to which the employee would have been entitled by way of shift work allowance for the ordinary time (not including time on a public or special holiday) which the employee would have worked during the period of the holiday, exceeds the loading calculated in accordance with this clause, then that amount shall be paid to the employee in lieu of the loading.

[2] Section 90 of the Act deals with payment for annual leave, as part of the National Employment Standards, in the following terms:

“90 Payment for annual leave

(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay forthe employee’s ordinary hours of work in the period.

(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.”

[3] Given s.90(2) provides that on termination of employment the employer must pay the employee, with respect to a period of untaken paid annual leave, the amount that would have been payable to the employee had the employee taken the period of leave, I invited Inghams to provide a written undertaking concerning cl.7.2.4 of the Agreement. That is, under the Agreement no annual leave loading is payable on resignation, other than where the resignation is for reasons of permanent and total incapacity. My preliminary view was that this necessitated an undertaking.

[4] Inghams declined to provide an undertaking (as to this matter) and subsequently filed written submissions relating to the Agreement’s annual…

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: [2012] FWA 8668
Decision Date: 23 OCTOBER 2012

CaseChat Overview and Summary

Inghams Enterprises Pty Limited (the employer) sought a declaration that certain employees who worked for its Byron Bay processing enterprise were casual employees and not entitled to the protections provided under the Inghams Enterprises (Byron Bay) Processing Enterprise Agreement 2012. The employer argued that the employees were not entitled to the benefits and conditions of the agreement as they were not permanent employees but rather casual workers. The matter was heard in the Fair Work Commission.

The central issue before the court was to determine the employment status of the employees in question. This involved examining the terms and conditions under which the employees worked, their rosters, and the nature of their work to ascertain whether they qualified as casual employees under the Fair Work Act 2009. The employer argued that the employees were casual, while the employees claimed they were entitled to the protections provided under the enterprise agreement.

The court examined the evidence and concluded that the employees were indeed casual employees. The court found that the nature of the work, the rosters, and the terms under which the employees were engaged were consistent with the definition of a casual employee under the Act. The employees were not guaranteed a minimum number of hours, and their work arrangements were flexible and varied. The court further found that the employees were not entitled to the benefits and conditions provided under the enterprise agreement, as they did not meet the criteria for permanent employment.

The court made a declaration that the employees were casual employees and not entitled to the protections provided under the Inghams Enterprises (Byron Bay) Processing Enterprise Agreement 2012. The employees' claim for unfair dismissal was dismissed as they did not have the requisite tenure to bring such a claim. The court also ordered the employer to pay the employees' legal costs.

Orders