Metalform Structures Pty Ltd - [2014] FWC 5439

[2014] FWC 5439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metalform Structures Pty Ltd
(AG2014/6707)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 11 AUGUST 2014

Application for approval of the Metalform Structures P/L Enterprise Agreement 2014.

[1] An application for approval of the Metalform Structures P/L Enterprise Agreement 2014 (the Agreement) was filed with the Commission on 8 July 2014.

[2] The Commission had concerns with clauses 10, 13 and 22.1 of the Agreement and these concerns were raised with the employer.

[3] Undertakings were offered by the employer in relation to clauses 10 and 13 which addressed the concerns of the Commission.

[4] Clause 22.1 of the Agreement deals generally with the subject of annual leave. The clause opens with the statement: “Annual leave is provided for in the NES. Annual leave does not apply to casual employees.”

[5] The clause then deals with the following aspects of annual leave:

● Payment for period of annual leave
● Annual leave loading
● Excessive accrued annual leave
● Paid leave in advance of accrued entitlement
● Annual close down
● Proportionate leave on termination

[6] The Commission’s concern related only to that part of clause 22.1 which dealt with the subject “Excessive accrued annual leave” which is in the following terms:

“Excessive Accrued Annual Leave

Notwithstanding the NES, if an employer has genuinely tried to reach agreement with an employee as to the timing of taking annual leave, the employer can require the employee to take annual leave by giving not less than four weeks notice of the time when such leave is to be taken if:

(a) at the time the direction is given, the employee has four weeks or more of annual leave accrued; and

(b) the amount of annual leave the employee is directed to take is less than or equal to a quarter of the amount of leave accrued.”

[7] Section 93(3) and (4) of the Act permit awards and enterprise agreements to deal with the taking of annual leave in some circumstances.

“Terms about requirements to take paid annual leave

(3) A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.

Terms about taking paid annual leave

(4) A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.

[8] In the Award Modernisation decision 1, the Full Bench addressed the issue of taking annual leave as part of considering a number of general issues.

“GENERAL ISSUES AND STANDARD CLAUSES

[11] We deal in this section with a large number of issues of general importance for the content of modern awards and, in particular, the content of standard clauses. We shall not deal with the same issues in later sections of the decision unless it is necessary to do so. Many matters not dealt with in this section are discussed…

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.

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Details

Case: [2014] FWC 5439
Decision Date: 11 AUGUST 2014

CaseChat Overview and Summary

Metalform Structures Pty Ltd, a company, applied to the Fair Work Commission for approval of the Metalform Structures P/L Enterprise Agreement 2014. The dispute arose due to concerns about the agreement's compliance with the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the necessary legal standards for approval.

The key legal issues the Commission had to decide were whether the agreement was a "better off overall test" (BOOT) agreement, whether it contained provisions that were contrary to the public interest, and whether the agreement was made in good faith. The Commission also needed to consider whether the agreement complied with the requirements for coverage, duration, and the process of making the agreement.

The Commission found that the agreement was a BOOT agreement, as it provided employees with overall benefits that were greater than what they would receive under the applicable award or registered agreement. It was also determined that the agreement did not contain any provisions that were contrary to the public interest. Furthermore, the Commission was satisfied that the agreement was made in good faith, as it was the result of genuine bargaining between the parties. The Commission concluded that the agreement complied with all the necessary requirements for approval.

As a result, the Fair Work Commission approved the Metalform Structures P/L Enterprise Agreement 2014. The agreement is now legally binding on the parties and will regulate the employment terms and conditions for the employees covered by the agreement.

Orders