Isis Central Sugar Mill Company Limited T/A Isis Central Sugar Mill

[2020] FWCA 4281

[2020] FWCA 4281

FAIR WORK COMMISSION

DECISION

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

Isis Central Sugar Mill Company Limited T/A Isis Central Sugar Mill
(AG2020/2085)

ISIS CENTRAL SUGAR MILL ENTERPRISE AGREEMENT NUMBER 10, 2020.

Sugar industry
COMMISSIONER HUNT	BRISBANE, 13 AUGUST 2020

Application for approval of the Isis Central Sugar Mill Enterprise Agreement Number 10, 2020.

[1] Isis Central Sugar Mill Company Limited T/A Isis Central Sugar Mill (the Employer) has applied for approval of an enterprise agreement known as the Isis Central Sugar Mill Enterprise Agreement Number 10, 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Workers’ Union (the AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (the CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) regarding the undertakings.

[3] On 11 August 2020, the AWU wrote to my chambers advising that it had no comment in relation to the undertakings. On 12 August 2020, the AMWU and the CEPU separately advised that it did not wish to make any further specific commentary about the matter and that it supports the Commission determining the matter based on the material that is before the Commission.

[4] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[5] I note that with respect to deductions, clause 7.3 of the Agreement provides that a full-time employee must reimburse the Employer on a pro rata basis for training costs where the employee is terminated within two years of completing the training. I further note that clause 8.1 of the Agreement provides that in the event that a full-time or fixed term employee has their services terminated by the Employer within six months of the date of issue, 50% of the cost to the Employer of the issue shall be deducted from any monies due to such employee on termination. It is my view that clauses 7.3 and 8.1 do not appear to be permitted deductions in accordance with s.324 of the Act. As such, it is my view that clauses 7.3 and 8.1 are likely unenforceable.

[6] I have identified that the following terms of the Agreement may be less beneficial or inconsistent with the National Employment Standards (NES):

•  Clause 5.1.4 and clause 5.2.11, which provides that for the ordinary hours of watchpersons and during the nominal crushing season to not exceed 40 per week. This appears inconsistent with s.62 of the Act;

•  Clause 6.1, which provides that full time employees are entitled to 4 weeks (152 hours) of paid leave and continuous shiftworkers are entitled up to 5 weeks (190 hours). The entitlement expressed in hours may be contrary to the NES;

•  Clause 6.3, which provides that employees are entitled to 76 hours (10 days) personal/carer's leave for each completed year of their employment. The entitlement expressed in hours may be contrary to the NES;

•  Clause 3.8.2(e), which provides that notice does not apply where employment is terminated on account of misconduct or through abandonment of employment;

•  Clause 3.8.3, which provides that if an employee fails to give notice or where a contract of employment has been terminated through the employee's abandonment of their employment, or frustration of the contract of employment, the Employer shall have the right to withhold monies due to the employee with a maximum amount equal to one week's wage; and

•  Clause 3.8.3, which provides that if an employee fails to give notice or where a contract of employment has been terminated through the employee's abandonment of their employment, or frustration of the contract of employment, the Employer shall have the right to withhold monies due to the employee with a maximum amount equal to one week's wage.

[7] With respect to the clauses identified above in paragraph [6], I note clause 1.6(c) of the Agreement which provides that “in the case of inconsistency between the NES and the Agreement, the NES shall prevail to the extent of the inconsistency”.

[8] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[9] The AWU, the CEPU and the AMWU being bargaining representative for the Agreement have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the AWU, the CEPU and the AMWU.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 August 2020. The nominal expiry date of the Agreement is 1 April 2023.

COMMISSIONER

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Annexure A: