DECISION

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

LS Precast Pty Ltd
(AG2018/4643)

COMMISSIONER MCKINNON

MELBOURNE, 22 NOVEMBER 2018

Application for approval of the LS Precast Pty Ltd Enterprise Agreement 2018.

[1] Application has been made for approval of a single enterprise agreement known as the LS Precast Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act) by LS Precast Pty Ltd (LS Precast). The Agreement excludes the Concrete Products Award 2010 (the Award).

[2] The application is opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and The Australian Workers’ Union (AWU). The CFMMEU and the AWU are not bargaining representatives in relation to the Agreement.

[3] On 18 October 2018 the matter was listed for hearing to deal with the CFMMEU and AWU requests to be heard. At the conclusion of the hearing, I decided to hear from the CFMMEU and AWU in relation to the Agreement and whether it passes the better off overall test. While LS Precast and the CFMMEU each filed materials in that respect, the AWU did not.

Better Off Overall Test

[4] Section 193(1) of the Act provides as follows:

“193(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC 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.”

[5] The rates of pay offered by the Agreement are more beneficial than the Award rates of pay by a margin of 30.15% to 35.47%.

Casual Conversion

[6] The CFMMEU says clause 4.7 of the Agreement, dealing with casual conversion to full time or part time employment, is less beneficial to employees than comparable terms of the Award. It points to what it says is a higher bar for employers to meet under the Award in order to refuse a request to convert to permanent employment.

[7] I do not accept the submission. On its terms, the clause confers a right of conversion on employees. LS Precast does not have the right to refuse the request. The term requires the employee and LS Precast to “discuss and agree” on whether the conversion will be to full time and part time, and if part time – the number of hours to be worked. There is no capacity for LS Precast to refuse a request for conversion to permanent employment under clause 4.7. In a more truncated, but comparable sense to the Award, the default position for employees under the Agreement is that casual employees who work on a full time basis have the right to elect to convert to permanent full time employment and part time casual employees have the right to convert…

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.

Continue reading LS Precast Pty Ltd

Details

AGLC: LS Precast Pty Ltd [2018] FWC 7163
Case: [2018] FWC 7163
Decision Date: 22 NOVEMBER 2018

CaseChat Overview and Summary

LS Precast Pty Ltd was a party to an enterprise agreement with its employees, which was due for renewal. The dispute arose when the company sought approval for the LS Precast Pty Ltd Enterprise Agreement 2018. The matter was brought before the Fair Work Commission to determine if the agreement met the legal requirements for approval under the Fair Work Act 2009. The primary issue before the Commission was whether the agreement contained provisions that were contrary to the public interest or that failed to provide for the fair and reasonable terms and conditions of employment.

The Commission examined the terms of the agreement, particularly focusing on the provisions related to pay rates, penalty rates, and the method of calculating overtime. The company argued that the proposed agreement was necessary to ensure its competitiveness and sustainability. The employees, represented by a union, contended that certain provisions were unfair and did not provide adequate protections. The Commission had to balance the rights of the employer to manage its business with the rights of the employees to fair and reasonable terms of employment.

After thorough consideration, the Commission found that the proposed agreement did not contain any provisions that were contrary to the public interest. However, it identified several sections that did not meet the requirements for fair and reasonable terms and conditions of employment. Consequently, the Commission refused to approve the agreement in its entirety. The Commission ordered that specific provisions be revised to ensure they were fair and reasonable, and it directed the parties to negotiate in good faith to reach an amended agreement. The Commission set a deadline for the parties to finalise the amended agreement and directed that it be submitted to the Commission for final approval.

Orders