Metroll Victoria Pty. Ltd.

[2014] FWCA 5211

[2014] FWCA 5211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metroll Victoria Pty. Ltd.
(AG2014/1910)

METROLL VICTORIA PTY LTD AND AWU (PRODUCTION EMPLOYEES) ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 1 AUGUST 2014

Application for approval of the Metroll Victoria Pty Ltd and AWU (Production Employees) Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Metroll Victoria Pty Ltd and AWU (Production Employees) Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Metroll Victoria Pty Ltd. The agreement is a single-enterprise agreement.

[2] The Agreement does not contain a consultation term with the content required by s.205(1) and (1A). Accordingly, in accordance with s.205(2), the model consultation term contained in Schedule 2.3 of the Fair Work Regulations 2009 is taken to be a term of the agreement and is appended at Appendix A.

[3] Clause 23 of the Agreement contains a provision under the sub-heading: Effect on Payment for Holidays if Absent on Working Day Before or After which gives the employer the right to refuse payment to an employee for a public holiday if the employee has been absent the day before or the day after the public holiday without reasonable excuse or without consent of the employer.

[4] The entitlement to be paid for public holidays is found in s.116 of the Act which provides as follows:

“116 Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay forthe employee’s ordinary hours of work on the day or part-day.

Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.”

[5] Clause 23 has the effect of excluding the operation of part of the NES, namely s.116, and creating a detrimental effect on employees in relation to their NES entitlements.

[6] Sections 55 and 56 of the Act deal with this issue.

“55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

56 Terms of a modern award or enterprise agreement contravening section 55 have no effect

A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”

[7] The provision in clause 23 of the Agreement referred to in [4] above is a term of the Agreement which contravenes s.55(2) and in consequence is a term of the Agreement which has no effect pursuant to the operation of s.56.

[8] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[10] The Agreement is approved and, in accordance with s.54(1), will operate from 8 August 2014. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code G, AE409396  PR553798>

APPENDIX A