Minebiz Pty Limited
[2010] FWA 630
•3 FEBRUARY 2010
[2010] FWA 630 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/23409)
COMMISSIONER LARKIN | SYDNEY, 3 FEBRUARY 2010 |
Application for approval of the Minebiz Pty Ltd Enterprise Agreement 2009 – no disadvantage test – approval refused.
[1] An application has been made by Minebiz Pty Limited pursuant to s.185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement. The enterprise agreement is titled the Minebiz Pty Ltd Enterprise Agreement 2009 and is to operate for a period of four years.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] The primary activity and industry in which the employer operates is said to be “Labour Hire in Mining Industry”. Attached to the application were eight forms, being Conditional Termination of an ITEA forms. The total number of employees covered by the enterprise agreement was stated to be 42 of which 8 voted and voted in support of the agreement. The enterprise agreement covers 42 casuals of which 17 are female, 4 under the age of 21 years and 12 over the age of 45 years.
[4] The reference instrument for the purpose of the no-disadvantage test was said to be the Metalliferous Mining Industry (State) Consolidated Award 1995, a notional agreement preserving a New South Wales award. The enterprise agreement covers administrative employees, however, no reference instrument was indicated for this type of employee. The positions listed are administration, surface operator, area supervisor, underground operator, labourer 1 and confined space sentry.
[5] Form F17 advises that the agreement is to operate in the state of New South Wales. However, at clause 2.4 the enterprise agreement is said to operate “in any state or territory of the Commonwealth of Australia where employees are employed by the Company in a position listed in Schedule One hereof”. It may be the case that the employer does not currently operate in any other State or Territory, however, the enterprise agreement in its terms provides for such operations.
[6] Clause 3, Position and Location, provides for permanent, fixed-term and casual employment. Employees are required to work at any place of business operated or accessed by the company. The provisions provide that full-time employees are engaged on an average of 38 hours per week, plus reasonable additional hours. The “reasonable additional hours”provisions are found at subclauses 5.6 to 5.9, which I will outline later. The casual hourly rate is inclusive of a 25% loading.
[7] Clause 5, Hours of Work, provides that the actual hours of work each week will depend upon the roster, which is set taking into account ordinary hours and reasonable additional hours. The provision states that the rate of pay incorporates all allowances, loadings, benefits, and rest or meal breaks. Rostered shifts will be generally of 12 hours duration by a cycle determined in Schedule Three.
[8] Schedule three, however, appears to be a form headed, “Notice to Casual Employees”, and is blank against the boxes headed “Classification”, “Client”, “Location”, “Shift arrangement” and “Banking”, which has the word “Weekly” beside it. The next box is “All inclusive hourly rate of pay” but does not include a figure.
[9] Rest breaks are to be taken in line with operational requirements.
[10] At subclauses 5.6 to 5.9 the additional hours provisions are outlined. In particular, the provisions provide that work performed in excess of 7.6 consecutive hours, Monday to Friday, are paid for at the all inclusive single time rate. Additional hours on Saturday and Sunday will be paid at the all inclusive rate in accordance with schedule three. However, as stated above, schedule three is a blank form.
[11] Clause 6 covers shift work and provides that shift work may be required and is a condition of employment. If the employer requires an employee to work shift work the employee will be given reasonable notice and advised of the intended starting and finishing times of the respective shifts.
[12] The reference instrument, for the purpose of comparison for this agreement, provides the following entitlements to employees.
[13] The hours of work provision, at clause 6, provides for an average of 38 hours per week. The ordinary hours for a day worker are between 6.30am and 6.00pm, Monday to Friday, inclusive, with a meal period of 30 minutes between 11.00am and 1.30pm. By agreement, the meal period may be paid in lieu of rest pauses as defined. The clause outlines arrangements for shift work and the situation where shifts are worked “without incurring the penalty rates as would be applicable to work performed on a Saturday or Sunday under clause 13, Overtime, and clause 21, Sundays and Holidays”. Shift workers and underground employees are allowed 30 minutes crib time, which is counted as time worked.
[14] The allowance for afternoon and night shift is paid at 15%. For continuous night shift a penalty of 30% applies. Work performed on a Saturday is paid at time and one half (clause 11). Work performed on a Sunday is paid at double time and on a public holiday the payment is double and a half (clauses 12 and 21).
[15] Overtime is found at clause 13. For day workers hours in excess of ordinary hours is to be paid at the rate of time and a half for the first two hours and double time thereafter, Monday to 12 noon Saturday. The remaining hours on Saturday attract double time. Shift workers are paid overtime for hours worked in excess of ordinary hours, or on a rostered day/shift off, at the rate of time and a half for the first two hours and double thereafter, Monday to Friday, and double time on Saturday. Clause 13 outlines provisions for call back, meal breaks and meal allowances.
[16] The agreement does not provide for the above conditions as the rate of pay in the agreement is said to incorporate these payments.
[17] The enterprise agreement, at clause 11, contains a training clause which provides that if an employee voluntarily ceases employment or is dismissed during the first three months of employment, the costs associated with site specific training and/or induction may be deducted from an employee’s entitlements. There is no such provision in the reference instrument. Furthermore, the provision may be contrary to the requirements of Division 2 of Part 2-5 of the Act, in particular if the employee is under the age of 18 years.
[18] The enterprise agreement, at clause 13, Annual Leave Entitlements, provides for 4 weeks for full-time employees, pro-rata for part-time, and an additional week for shift workers. When employees take annual leave “salary will be maintained and their annual leave accruals will be deducted by that amount”. This provision appears to suggest that an employee who takes a period of annual leave may not be paid for that leave in advance. There is no such provision contained within the reference instrument. Furthermore, it is arguable that the provision is contrary to the Annual Holidays Act 1944. There is no annual leave loading provided for in the enterprise agreement. The reference instrument, at clause 17, provides for the payment of a loading.
[19] Clause 15, Work on Public Holidays, is an interesting provision and worth setting out in full. The provision reads:
“15.1 All official public holiday pursuant to the State in which an employee is engaged will be administered in line with the Company’s policies and procedures.
15.2 Should the employee not be required to work on a Public Holiday they will be paid the rostered hours at the inclusive rate (excluding Casuals).
15.3 The Company may require an employee to work on public holidays. Where employee are required to work, they will be paid at the all inclusive rate for their classification for all hours worked.”
[20] It is not clear in the enterprise agreement just what the company’s policies and procedures, in relation to the administration of public holidays, are exactly. Further, employees receive the same payment whether they work or do not work, depending upon what “rostered hours”means and whether or not that is different to the “hours worked”. The reference instrument contains public holiday provisions at clauses 16 and 21. Those provisions list the public holidays that employees are entitled to and provides for payment of double time and a half for all work performed on a holiday with a minimum period of four hours.
[21] Rates of Pay in the agreement are found at Schedule One in table form and are as follows:
“ RATES OF PAY
CLASSIFICATION | ||||
| Full Time All inclusive rate per hour | Casual All inclusive rate per hour | |||
DAY | SHIFT | DAY | SHIFT | |
Administration | n/a | n/a | $22.00 | n/a |
Surface Operator | n/a | n/a | $25.00 | n/a |
Area Supervisor | $26.32 | n/a | n/a | n/a |
Underground Operator | n/a | n/a | $ | $33.00 |
Labourer 1 | n/a | n/a | $24.00 | $25.50 |
Confined Space Sentry | n/a | n/a | $25.00 | n/a |
The above schedule of rates will be reviewed on an annual basis in consideration of industry standards and business requirements”
[22] The enterprise agreement provides for the engagement of permanent and fixed term employment as well as casual engagement. The table above does not provide the rate of pay for the category of permanent or fixed term employment. The employer may at this point in time only engage casual employees. The enterprise agreement, however, contains terms and conditions for employees other than casuals. Over the period that the enterprise agreement is to operate it is open to the employer to employ permanent and/or fixed term employees, however, the enterprise agreement does not provide a rate of pay for those employees. The agreement cannot be tested to ensure that those employees are not disadvantaged by the operation of the agreement.
[23] There are no position descriptions within the enterprise agreement for the above classifications nor does the above table provide the necessary detail for comparison with the reference instrument. Without that information it is difficult to ascertain exactly what level of the reference instrument’s classification structure would apply to an employee covered by the agreement.
[24] The reference instrument provides rates of pay for permanent and casual employees. It also includes a classification structure with position descriptions for each level of that structure. The pay scales cover three types of operations, being Treatment Plant Operators, Mine and Haulage and Underground Operations. The basic rate of pay within the reference instrument, for a full time employee, ranges from $568.20 to $683.10 per week and for casual employment, from $18.64 to $22.41 per hour. This is the basic rate upon which other loadings and penalties would apply depending upon the work arrangement.
[25] The agreement at schedule two provides for one allowance, being a living away from home allowance paid to FIFO employees in accordance with clause 8.3 of the agreement. The provision states that as a guide and subject to specific site requirements an allowance of $360.00 per 7 days is paid for fly/fly operations. The enterprise agreement appears not to provide for any other allowance as the inclusive rate of pay incorporates all allowances.
[26] Allowances provided for in the reference instrument are qualified supervisor certificate, certificate of registration (electrician), leading hand and tool, meal, first aid allowances. Whether or not these allowances are relevant to the duties of employees covered by the enterprise is not clear.
[27] Paragraph (d) of ss.186(2) of the Act requires that FWA must be satisfied that the agreement passes the better off overall test, which for the purpose of this application is the no-disadvantage test, 2 for the approval of the agreement. On the material before me I cannot be satisfied that it does for the reasons outlined above.
[28] Section 190 of the Act provides that FWA may approve an enterprise agreement with undertakings. Subsection 190(3) states:
“FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.”
[29] The undertakings that would be required to satisfy the legislative requirements, that each award covered employee and each prospective award covered employee covered by the agreement would not be disadvantaged if the agreement applied to them, in my view, would result in substantial changes to the agreement.
[30] As I am not satisfied that the legislative requirements for approval have been met I decline to approve the enterprise agreement.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
2 Division 2, Part 2, of Schedule 7 of the Transitional Act.
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