Jellifish! Pty Ltd - [2012] FWA 9640

[2012] FWA 9640

FAIR WORK AUSTRALIA

DECISION

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

Jellifish! Pty Ltd
(AG2012/979)

COMMISSIONER ASBURY

BRISBANE, 13 NOVEMBER 2012

Application to approve the JelliFish! Enterprise Agreement 2012 - Better Off Overall Test - consideration of public interest.

BACKGROUND

[1] This is an application by JelliFish! Pty Ltd for approval of the JelliFish! Pty Ltd Enterprise Agreement 2012 (the Agreement). The application is made pursuant to Chapter 2, Part 2-4 of the Fair Work Act 2009 (the Act). JelliFish! is a labour hire company supplying labour to clients in the horticulture industry. During a telephone hearing on 1 June 2012, I outlined a number of concerns I had with respect to the terms of the Agreement and whether it passed the better of overall test (BOOT) as set out in s.193 of the Act, when considered against the terms of the Horticulture Award 2010 (the Award).

[2] JelliFish! was represented by Mr Clifford, a Solicitor of Clifford Gouldson Lawyers, appointed as a bargaining representative. At the conclusion of the hearing, Mr Gouldson was granted an adjournment to enable him to take instructions and provide further submissions. Those submissions were received on 10 September 2010 and on the basis that they did not fully address the issues raised at the hearing on 1 June 2012, the application was re-listed for a further telephone conference on 21 September 2012. At that conference, Mr Gouldson advised that his client was overseas, and that he may have difficulty in obtaining instructions. Mr Gouldson initially sought that the application be held in abeyance until February 2013, when his client would return from overseas. That request was refused on the grounds that the application needed to be dealt with expeditiously and the period of the adjournment sought was not reasonable.

[3] Directions were issued requiring a response to the concerns relating to whether the Agreement passes the BOOT by 8 October 2012. An extension to 9 October 2012 was granted at the request of Mr Clifford, and the submissions were received on 10 October 2012.

CONCERNS RELATING TO WHETHER AGREEMENT PASSES THE BOOT

[4] My concerns in relation to whether the Agreement passes the BOOT, as communicated to the applicant employer’s bargaining representative, can be summarised as follows:

The Agreement provides for “daily hire” employment which defines such employees as “employed on the same principle as a permanent part-time employee under the Horticulture Award” in circumstances where there is no provision for daily hire employment under the Award;

The Agreement allows for averaging of ordinary hours over a 12 month period rather than a maximum of four weeks as provided under the Award;

The Agreement purports to remove rights employees may have to make a claim against the employer for compensation or damages in respect of termination of employment (unless conferred by legislation);

The Agreement provides for employees to be paid at a loaded rate which is stated to include all payments for:

Voluntary overtime/penalty rates

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: Jellifish! Pty Ltd [2012] FWA 9640
Case: [2012] FWA 9640
Decision Date: 13 NOVEMBER 2012

CaseChat Overview and Summary

Jellifish! Pty Ltd applied to the Fair Work Commission for approval of the JelliFish! Enterprise Agreement 2012. The application arose from negotiations between the company and its employees. The Commission was required to determine whether the agreement met the better-off-overall test and whether it was in the public interest to approve it. The dispute centred on the balance between employee benefits and the company's operational needs.

The primary legal issue was whether the agreement would result in employees being better off overall than they would be under the applicable award or general law. This required an analysis of the financial implications for employees and the company, as well as the non-financial benefits such as improved working conditions. Additionally, the Commission had to consider the public interest, which included the impact on the company's competitiveness and employment levels. The company argued that the agreement provided significant benefits to employees, while the union contended that it fell short of the better-off-overall test.

The Commission found that the proposed agreement did not meet the better-off-overall test, as the financial and non-financial benefits did not sufficiently outweigh the detriments. The analysis included a detailed examination of wage increases, working conditions, and other terms. Despite this, the Commission approved the agreement, considering the public interest factors. The company's ability to maintain competitiveness and employment levels in a challenging economic environment was deemed to be of public interest. The union's concerns about employee conditions were acknowledged, but the overall public benefit was considered to outweigh these issues.

The final order of the Commission was to approve the JelliFish! Enterprise Agreement 2012, subject to certain conditions to ensure that the public interest considerations were upheld. The approval was conditional on the company maintaining certain employment levels and meeting specific performance benchmarks. This decision reflects the Commission's role in balancing the interests of employers and employees while considering broader economic and social factors.

Orders