Main People Pty Ltd

[2015] FWCA 8917

[2015] FWCA 8917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Main People Pty Ltd
(AG2014/6270)

MAIN PEOPLE PTY LTD AGREEMENT 2014

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 DECEMBER 2015

Application for approval of the Main People Pty Ltd Agreement 2014.

[1] The Main People Pty Ltd Enterprise Agreement 2014 (Agreement), the Agreement, the subject of this application for approval was made on 29 May 2014. An application for approval of the Agreement was lodged by Main People Pty Ltd (Main People) in the Fair Work Commission on the same day. The statutory declaration accompanying that application disclosed that as of that date, Main People only employed three people on a casual basis who were covered by the Agreement. Two of these were trades assistants and one was a boilermaker. They were employed at Karratha in Western Australia. None of these three remained employed by Main People.

[2] The application for approval of the Agreement is opposed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers’ Union (AMWU).

[3] The application has a long history which was set out in a decision of a Full Bench of this Commission in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Manufacturing Workers’ Union v Main People Pty Ltd 1 and is not repeated here. The result in the aforementioned decision was that the appeal brought by the CEPU and the AMWU was upheld and the decision approving the Agreement was quashed. In so doing the Full Bench observed:

‘[41] It will be necessary for Main People’s application for approval of the Agreement to be re-determined. Pursuant to s.607(3)(c)(ii) of the FW Act, we will refer the matter to a member of this Full Bench for this purpose on the basis that the Agreement may be approved if a re-formulated undertaking is proffered which:

(1) does not purport to change the coverage of the Agreement;

(2) retains paragraphs 4 and 5 of the existing undertaking;

(3) requires the employer to identify, with respect to each employee engaged who is covered by the Agreement, which modern award would apply to the employee’s employment if the Agreement did not apply (the relevant award);

(4) requires the employer to pay to each employee, within each pay cycle, a total amount which is a specified and not nominal monetary amount more than the amount of pay the employee would have received if paid under the relevant award for the work performed in that pay cycle; and

(5) provide the employee, each pay cycle, with a reconciliation which identifies how the payment amount in (4) was calculated.

[42] The member to whom the matter is referred may in addition consider whether there needs to be any additional requirements contained in the undertaking in order to make it capable of acceptance under s.190(2). It will of course be necessary under s.190(4) to seek the views of the bargaining representatives with respect to any revised undertaking, and we consider in the circumstances of this case that the unions are also entitled to be heard on the matter.’ 2

[4] The application for approval of the Agreement was remitted to me. Main People have provided two forms of undertaking, the second of which was provided following a hearing conducted on 18 November 2015 and correspondence from my chambers concerning the adequacy of the first undertaking. Each undertaking sought to address the issues raised by the Full Bench reproduced above.

[5] I will concern myself only with the second undertaking, the text of which is reproduced below:

‘Main People Pty Ltd (Main People) gives the following undertaking in respect of the Main People Pty Ltd Agreement 2014 (Agreement):

1. Main People will write to each Employee covered by the Agreement and advise them of the modern award which would apply to each Employee’s employment if the Agreement did not apply.

2. If an Employee has the relevant skills and qualifications and is required to perform work for Main People within the scope of a classification higher than C 10 in the Manufacturing and Associated Industries and Occupations Award 2010 (Metals Award) as per Schedule B of the Metals Award (if it applied to his or her employment), Main People will ensure that the Employee will be paid at a rate that maintains the wage relativities as reflected in Schedule B of the Metals Award on the basis that the appropriate Award relativity will be calculated by reference to the Level 1 base rate of pay in the Agreement as follows:

Metals Award Classification	% of Level 1 base rate of pay under Agreement
C10	100
C9	105
C8	110
C7	115
C6	125
C5	130
C4	135
C3	145
C2(a)	150
C2(b)	160
C1	180/210

3. If work undertaken by an Employee under this Agreement would be covered by the Metals Award, Main People will:

(a) pay to each Employee, within each pay cycle, a total amount which is no less than $2.00/hour more than the amount of pay the Employee would have received if paid under the Metals A ward for the work performed in that pay cycle; and; and (sic)

(b) provide each Employee with a reconciliation which identifies how the payment amount in undertaking 3(a) above was calculated.

4. If work undertaken by an Employee under this Agreement would be covered by a different modern award to the Metals Award, Main People will:

(a) pay to each Employee, within each pay cycle, a total amount which is no less than $2.00/hour more than the amount of pay the Employee would have received if paid under the relevant modern award for the work performed in that pay cycle; and

(b) provide each Employee with a reconciliation which identifies how the payment amount in undertaking 4(a) above was calculated.

5. Main People will only apply the roster cycles set out in clause 13(i) to 13(x) of the Agreement.’

[6] The above undertaking differs from the first undertaking in that paragraph 3 of the above is now in conformity with paragraph 4, although I note that the amount in paragraph 4 has been reduced to $2.00 per hour.

[7] During the course of the hearing before me on 18 November 2015 Counsel for the CEPU and AMWU conceded that if the first undertaking proposed by Main People was amended so that paragraph 3 was in conformity with paragraph 4 of the first undertaking then the CEPU and the AMWU will have more difficulty maintaining their objection that the Agreement does not pass the better off overall test (BOOT). 3

[8] I am satisfied that the second undertaking proposed by Main People meets the concerns expressed by the Full Bench, of which I was a member; about the better off overall test (BOOT) and the form of the proposed undertakings as well as the concerns expressed in an earlier Full Bench decision about the Agreement meeting the BOOT. 4 In my view, the objections of the CEPU and AMWU fall away given the terms of the second undertaking. I do not regard the reduction of the amount in paragraph 4 of the undertaking as having a material bearing on the adequacy of the undertaking to meet the BOOT concern.

[9] The views of the known bargaining representatives for the Agreement have been sought by me. Specifically, in relation to both the first and the second undertaking proposed by Main People, correspondence from my chambers was sent by registered post to the last known address of each of the bargaining representatives for the Agreement. The most recent correspondence was sent on 8 December 2015. The correspondence attached a copy of the proposed undertaking and sought the views of the bargaining representatives. The bargaining representatives were given until 15 December 2015 to provide any views. Contact details for my chambers were also provided to each bargaining representative in the event that any of them wished to discuss the matter or seek further clarification. As at the date of this decision, no views been communicated to me by any of the known bargaining representatives. I also have given each of the AMWU and the CEPU an opportunity- to comment on the proposed undertaking. The views have been communicated in writing and also during the course of proceedings on 18 November 2015. I have taken these views into account.

[10] In the circumstances, I am prepared to accept the undertaking proposed by Main People in its correspondence of 4 December 2015 and with that undertaking I am satisfied that the Agreement passes the BOOT. A copy of the undertaking is attached in Annexure A.

[11] Subject to the undertaking 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.

[12] The Agreement was approved on 24 December 2015 and, in accordance with s.54, will operate from 31 December 2015. The nominal expiry date of the Agreement is 23 December 2019.

DEPUTY PRESIDENT

Appearances:

D. Williams with T. Walthall for Main People Pty Ltd.

E. White of Counsel with L. Tiley for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

Hearing details:

2015.

Melbourne, Brisbane (video hearing):

November 18.

Annexure A

 1   [2015] FWCFB 4467 at [2] – [17].

 2   Ibid at [41] – [42].

 3   Transcript PN54 – PN57.

 4   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Manufacturing Workers’ Union v Main People Pty Ltd [2014] FWCFB8429 at [28].

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