Markforce International Pty Ltd
[2011] FWA 7435
•28 OCTOBER 2011
[2011] FWA 7435 |
|
STATEMENT |
Fair Work Act 2009
s.185—Enterprise agreement
Markforce International Pty Ltd
(AG2011/11736)
Manufacturing and associated industries | |
COMMISSIONER RYAN | MELBOURNE, 28 OCTOBER 2011 |
Application for approval of the Markforce International Enterprise Agreement 2011.
[1] An application for approval of the Markforce International Enterprise Agreement 2011 (the Agreement) was filed on 26 August 2011. The applicant is Markforce International P/L and the applicant’s representative is Mason Sier Turnbull.
[2] The applicant had previously filed an application for approval of an enterprise agreement in May 2011. At a hearing in relation to that matter 1I drew to the attention of the Applicant a number of concerns I had in relation to the proposed agreement. The Applicant was also represented at that hearing by Mason Sier Turnbull. I did not require the Applicant to respond at the hearing to the concerns I raised, rather, I gave the applicant 14 days to consider and respond to the concerns, including by way of offering undertakings. The 14 days was to ensure that the Applicant and its legal representative, Mason Sier Turnbull, had an opportunity to obtain the transcript of proceedings and address the issues raised. Mason Sier Turnbull wrote to my chambers by letter dated 28 June 2011 advising the Tribunal that the application in matter AG2011/9688 was withdrawn ‘so that a fresh application can be made incorporating the feedback received from Commissioner Ryan.’
[3] The Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (F17) sworn by Mr Kenny, a Director of the Applicant, and filed in this matter acknowledges the previous application and its withdrawal. The F17 also identifies that on 21 July 2011 the Applicant provided to each employee a Memorandum explaining that:
‘As a result of feedback we have received from Fair Work Australia, we have made some changes to the Markforce International Enterprise Agreement relating to:
1. Clause 7 relating to the regular hours of work for part time employees. Any proposed changes to regular hours of work for a part time employee will now require agreement between the employee and Markforce.
2. Clause 13 relating to relocation of employment. Any proposed relocation of employment, either on a permanent or temporary basis, will require agreement between the employee and Markforce.
3. Clause 15 relating to rosters. An employee may agree to work no more than 14 hours per shift, and will have at least 10 hours break between consecutive shifts.
4. Clause 16 relating to meal and rest breaks. Breaks cannot be taken within 1 hour of the commencement or end of a shift.
5. Clause 19.3 relating to mandatory meetings. Attendance at mandatory team meetings outside of rostered hours will be paid at overtime rates.
6. Clause 28.2 provides that for non-salaried staff, the increase of minimum wage rates under the agreement pursuant to clause 28.1 shall take place from the first full pay period on or after 7 December of each year during the Agreement's operation.
7. Removal of provisions allowing cashing in of long service leave.
8. Revised minimum wage rates schedule for the 2011/12 financial year.’
[4] Whilst the applicant had made some changes to the agreement previously approved by employees the changes did not address all of the concerns raised by the Tribunal in the relation to the earlier version of the agreement.
[5] Concerns which were specifically brought to the attention of the applicant and its legal representative in relation to matter AG2011/9688 and which the Tribunal continues to have in relation to the present application are as follows.
Salaried Employees
[6] The Agreement refers to two classes of employees, Salaried Employees and Non Salaried Employees. Each class of employee is defined in clause 3 of the agreement.
‘3.16 “Salaried Employee” means an Employee who receives an annual salary in equal payments, weekly, fortnightly, or monthly as determined by Markforce International, irrespective of the hours worked by the Employee in accordance with this Agreement and the Letter of Engagement.’
[7] Salaried Employee’s can be employed as either full time salaried employees or as part time salaried employees.
Full time Salaried Employees
[8] A Full time Salaried Employees is described in clause 7.4(b) as follows:
‘7.4(b) Full time Salaried Employees:
(i) are required to work an average of 38 hours per Week, averaged over 4 weeks, plus reasonable additional hours as relevant to the Employee’s position; and
(ii) are paid a salary which is in full satisfaction of all hours worked; and
(iii) shall not be entitled to payment of Overtime under Clause 17.1 or payment of an additional public holiday penalty in accordance with Clause 40.2.’
[9] Additionally, clause 18 of the Agreement provides as follows:
‘18 Reasonable Additional Hours - Salaried Permanent Employees
18.1 The salary for Full time and Part time Salaried Employees includes a component for all reasonable additional hours in excess of 38 hours per Week and is in full satisfaction of all hours worked.
18.2 Salaried Employees are not entitled to additional payment for Overtime or paid time off in lieu in accordance with Clause 17.’
[10] In the case of Full time Salaried Employees the salary is in full satisfaction of all hours worked (both Standard Hours of Work and Additional Hours) without the Agreement placing any upper limit on the hours worked. However the fixed value of the salary for a Full time Salaried Employee permits a direct comparison to be made between the number of hours an employee would work under the terms of a modern award in order to receive the value of the salary under the Agreement.
[11] The classification of Administration Assistant under the Agreement applies to an employee ‘whose duties include, but are not limited to, reception and basic administrative assistance to other employees within the business.’ The corresponding classifications in the Clerks Private Sector Award 2010 (the Award) are Level 1 and Level 2, which in relation to reception duties include the following:
Level 1 Indicative typical duties and skills at this level may include:
Reception/switchboard, e.g. directing telephone callers to appropriate staff, issuing and receiving standard forms, relaying internal information and initial greeting of visitors.
Level 2 Indicative typical duties and skills at this level may include:
Reception/switchboard duties as in Level 1 and in addition responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation, and use of interpersonal skills are a key aspect of the position.
[12] As the classification of Administration Assistant covers both Level 1 and Level 2 under the Award then for the purpose of applying the Better Off Overall Test (BOOT) I have compared the Administration Assistant to the wage rate for a Level 2 - Year 2 employee under the Award.
[13] The salary for an Administration Assistant is $840.00 per week in full satisfaction of all hours worked.
[14] The Level 2 - Year 2 rate of pay is $699.00 per week ($18.39 per hour) for 38 hours worked within the ordinary hours Monday to Friday.
[15] The Agreement pays $141.00 more than the Award.
[16] A Level 2 - Year 2 employee under the Award would be paid time and half for the first two hours of overtime when overtime is worked Monday to Saturday - which is an amount of $27.58 per hour. On this basis a Level 2 - Year 2 employee under the award would only have to work 5.11 hours per week of overtime at the time and a half rate to equal the salary rate under the Agreement. The Agreement very clearly does not limit an Administration Assistant to working that amount of overtime. In fact the structure of the Agreement would permit the employer to have an Administration Assistant who is a Full time Salaried Employee to work much more than 5.11 hours per week overtime but without the need to pay the employee the same amount the employee would have been paid under the Award.
Part time Salaried Employees
[17] A Part time Salaried Employee is described in clause 7.5(b) as follows:
‘7.5(b) Part time Salaried Employees:
(i) are required to work up to 38 hours per Week plus reasonable additional hours; and
(ii) are paid a salary which is in full satisfaction of all hours worked; and
(iii) shall not be entitled to payment for Overtime under Clause 17.1 unless additional hours exceed 15% in excess of the Employee’s Standard Hours of Work, or payment of an additional public holiday penalty in accordance with Clause 40.2. For the avoidance of doubt, this clause does not require Part time Employees to work 15% in excess of the Employee’s Standard Hours of Work.’
[18] Additionally, part time employment is constrained by clauses 7.2 and 7.3 which provide that:
‘7.2 Part time employees shall be advised of the number of hours and the days of the week the Employee will work.
7.3 Any change to an Employee’s Letter of Engagement, capacity or agreed number of Standard Hours of Work shall be made in consultation and agreed with the Employee and will be confirmed in writing.’
[19] Standard Hours of Work are defined in clause 3.19 as:
‘3.19 “Standard Hours of Work” are those hours an Employee is required to work, excluding reasonable additional hours as set out in Clauses 7.4, 7.5 and 7.6 of this Agreement.’
[20] Additionally, clause 18 of the Agreement provides as follows:
‘18 Reasonable Additional Hours - Salaried Permanent Employees
18.1 The salary for Full time and Part time Salaried Employees includes a component for all reasonable additional hours in excess of 38 hours per Week and is in full satisfaction of all hours worked.
18.2 Salaried Employees are not entitled to additional payment for Overtime or paid time off in lieu in accordance with Clause 17.’
[21] The first concern in relation to Part time Salaried employment is that whilst the operation of clauses 7.2 and 7.3 appear to provide protections for Part time Salaried employees which are similar to the protections provided by the Award those protections are illusory given the language of clause 7.4(b) and clause 18. The second concern is that the combined operation of clauses 3.19 and 7.5(b) leads to the outcome that a Part time Salaried employee has Standard Hours of Work up to 38 per week, even if the part time salary is based on a significantly lesser period than 38 hours per week.
[22] Clause 15 of the Agreement provides that an employee can agree to work a 14 hour shift on any day on which work is performed. This would clearly permit multiple 14 hour shifts being worked within single week. I have a real concern that the capacity to have 14 hour shifts does not mean that an employee will be better off overall if employed under the terms of the Agreement. How does the employer assert that this provision passes the BOOT?
[23] I have a concern that the provisions of clause 47 of the Agreement provide a lesser benefit for employees than does the NES provisions in relation to redundancy.
[24] I note that not only have I drawn to the attention of the Applicant and of Mason Sier Turnbull my concerns as to the contents of the proposed Agreement in this matter but that I have previously expressed many of the same concerns to Mason Sier Turnbull in relation to other applications for approval of an enterprise agreement where the terms of the agreements were nearly identical to the agreement in this matter. 2 In two of the earlier matters where the applicant was represented by Mason Sier Turnbull the application was discontinued after I expressed my concerns to the applicant and to Mason Sier Turnbull. In another matter3 my decision not to approve the agreement was appealed and the appeal upheld and the matter was then dealt with by Lewin C who also sought undertakings on some of the same issues I have expressed concern about in this matter.
[25] It is surprising therefore that with Mason Sier Turnbull having detailed knowledge of the concerns that have been expressed in the past about agreements which contained provisions for Full time Salaried Employees and Part time Salaried Employees almost identical to the current agreement that the Applicant in this matter has sought now on 2 occasions to have an agreement containing such clauses approved by the Tribunal.
[26] I will give the Applicant 7 days to provide any undertakings under s.190 of the Act it may wish to provide which address my concerns.
COMMISSIONER
1 AG2009/9688 - Application by Markforce International
2 AG2009/22820 - Application by Unipod Pty Ltd
3 AG2010/11703 - Application by Armacell Pty Ltd
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