Lobethal Abattoirs Pty Ltd T/A Thomas Foods International

[2017] FWC 421

[2017] FWC 421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lobethal Abattoirs Pty Ltd T/A Thomas Foods International
(AG2016/5801)

DEPUTY PRESIDENT ASBURY BRISBANE, 19 JANUARY 2017

Application for approval of the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2016.

[1] Lobethal Abattoirs Pty Ltd T/A Thomas Foods International (the Company) has applied under s. 185 of the Fair Work Act 2009 (the Act) for approval of the Food Process Worker Lobethal Abattoir Employee Collective Agreement 2016 (the Agreement). The application is opposed by the Australasian Meat Industry Employees Union (AMIEU). I conducted a hearing into the application at which evidence was given on behalf of the Company and the Union. At the conclusion of the hearing, I indicated to the Company’s representative that if I had concerns about whether the Agreement passes the better off overall test (BOOT) Agreement I would issue a Decision outlining those concerns and it would be given an opportunity to address those concerns. I also made it clear that that opportunity was not a negotiation process and that, consistent with the Decision of a Full Bench of the Commission in AKN Pty Ltd t/a Aitken Crane Hire 1 the Company would have one chance to address those matters.

[2] In a Decision issued on 11 January 2017, 2 I identified a number of issues which caused me to be concerned about whether the Agreement passes the BOOT when considered against the terms of the Meat Industry Award 2010 (the Award) and gave the Company a period of five days to respond by filing further written submissions and any proposed undertakings. The Company has now provided further submissions and proposed undertakings. The views of the AMIEU as bargaining representative were sought and the Union maintains its opposition to approval of the Agreement and contends that the undertakings do not address all of the issues and that if acceptedwillsubstantially change the Agreement.

[3] I have considered the submissions and undertakings proposed by the Company and the response provided by the Union. I am not satisfied that response and proposed undertakings provided by the Company address the issues identified in my Decision to the extent that the Agreement passes the BOOT. In particular, I remain concerned about the terms of clause 19 of the Agreement in relation to waiting time. The Company proposes that it would apply the clause on the same basis as the stand down provisions in clause 18 of the Agreement. The issue I identified is that there is no limit on the number of occasions in a day, a week, a pay period or the period over which ordinary hours are averaged, when employees can be required to stand by without pay and hold themselves in readiness to recommence work.

[4] When the stand down clause is applied, employees are stood down and can leave the workplace. The fact that employees can leave the workplace combined with the requirement that the employer can only implement a stand down where there is no useful work for employees to perform, is a control on the use of stand down provisions. There is no control on the waiting time provisions. There is also a requirement that employees who are standing by without pay during what would be their ordinary working hours, can be required to remain at work after what would have been their ordinary ceasing time, for up to 2 hours. The fact that the time that employees may be required to work after their ordinary ceasing time is paid at a loaded rate, does not in my view compensate them for the detriment associated with the application of clause 19 of the Agreement. Under the Award full time employees could not be required to stand by without pay and hours outside the ordinary ceasing time would be paid at overtime rates.

[5] In my view, the wage rates in the Agreement are not sufficiently in excess of the Award to offset the detrimental effects of clause 19 of the Agreement and the other allowances and Award terms that are not provided for in the Agreement, so that I could be reasonably satisfied that the Agreement passes the BOOT.

[6] Accordingly, I am unable to approve the Agreement and the application for approval is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms. K. Rogers on behalf of the AMIEU.

Mr. S. Dasan of Norman Waterhouse Lawyers appearing for the Respondent.

Hearing details:

Brisbane.

2 December 2016.

 1   [2015] FWCFB 1833 at [38].

 2   [2017] FWC 151.

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