Litex Pty Ltd T/A Instant Shade Marquees and Umbrellas
[2011] FWA 725
•3 FEBRUARY 2011
[2011] FWA 725 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Litex Pty Ltd T/A Instant Shade Marquees and Umbrellas
(AG2010/19136)
INSTANT SHADE ENTERPRISE AGREEMENT (2010)
Amusement, events and recreation industry | |
DEPUTY PRESIDENT IVES | MELBOURNE, 3 FEBRUARY 2011 |
Application for approval of the Instant Shade Enterprise Agreement (2010).
[1] An application has been made for approval of an enterprise agreement known as the Instant Shade Enterprise Agreement (2010) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Litex Pty Ltd T/A Instant Shade Marquees and Umbrellas (the Applicant). The Agreement is a single enterprise agreement.
[2] The Agreement was made on 15 October 2010.
[3] Section 193(1) relevantly provides as follows:
“193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
...”
[4] An initial assessment indicated that the Agreement did not pass the better off overall test for reasons including the following:
- Increased hourly wage rates payable under the Agreement do not compensate for the removal of Saturday and Sunday penalties that are provided for in the relevant modern award.
- Increased hourly wage rates payable under the Agreement do not compensate for the removal of annual leave loading that is provided for in the relevant modern award.
- Hourly wage rates for various classifications in the Agreement were substantially lower than wage rates provided for in the relevant modern award.
- The spread of hours was uncapped for various classifications in the Agreement.
[5] In correspondence dated 6 January 2011, the Applicant was advised of this assessment and invited to indicate to Fair Work Australia how it wished to proceed with the application. The Applicant requested a formal hearing of the application.
[6] At, and subsequent to, a formal hearing on 21 January 2011, the Applicant provided undertakings pursuant to s.190 of the Act in respect of various of the issues raised.
[7] Subsections 190(1), 190(2) and 190(3) of the Act relevantly provide:
“190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.”
[8] The provided undertakings may well have resulted in substantial changes to the Agreement thus preventing, pursuant to ss.190(3) of the Act, acceptance of them. In any event the undertakings did not meet all concerns in relation to the better off overall test.
[9] Concerns remain in relation to:
- Unlimited, and therefore potentially unpaid, hours requirements for salaried employees.
- Reductions and removal of particular penalty rates for sales personnel.
[10] I am satisfied that any further undertakings the Applicant may choose to provide to address remaining concerns, when taken together with those undertakings already provided would result in substantial changes to the Agreement and would thereby render the undertakings unacceptable.
[11] The application for approval is refused on the basis that the Agreement does not pass the better off overall test as required by ss.186(2)(d) of the Act.
DEPUTY PRESIDENT
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