Mitolo Group Pty Ltd - [2014] FWC 7682

[2014] FWC 7682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Mitolo Group Pty Ltd
(AG2014/1736)

Agricultural Industry

DEPUTY PRESIDENT BARTEL

ADELAIDE, 31 OCTOBER 2014

Application for approval of The Mitolo Group Horticultural Production Employees Collective Agreement 2014

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

[2] The National Union of Workers (the NUW), being a bargaining representative for the Agreement, has filed a Form F18 Statutory Declaration. The NUW opposes approval of the Agreement, contending that:

The modern award identified by the employer in the application for approval, the Horticulture Award 2010 (the Horticulture Award) 1, does not cover the employees bound by the Agreement;

The correct award is the Storage Services and Wholesale Award 2010 (the Storage Services Award) 2; and

The Agreement does not pass the better off overall test (BOOT) when measured against either of the above awards.

[3] The NUW also contends that the employer has attempted to portray the Agreement as being aligned with the work under the Horticulture Award by the late inclusion of additional types of work performed under the Agreement. This was said to be in contrast with the scope of the Agreement as set out in the Notice of Representational Rights (the NRR) issued in advance of the negotiations.

[4] The employer rejects these arguments and contends that the nature of the work performed by its employees and the locations at which the work is performed fall within the scope of the Horticulture Award. Further, it is submitted that the Agreement passes the BOOT against both of the awards in issue.

[5] The Agreement covers employees located at Angle Vale Road, Virginia (the Angle Vale Road site), north of Adelaide. It was negotiated between the employer, the NUW and fourteen (14) nominated employee bargaining representatives. One of the employee bargaining representatives, Ms Kay Rault, opposed approval of the Agreement, essentially on the same grounds as the NUW. The remaining employee bargaining representatives supported the approval of the Agreement.

[6] The NUW called Dave Garland, union official, who was involved in negotiations for the Agreement from May 2014. Ms Rault also gave evidence. The Employer called evidence from Ms Paula Hentschke, Group Human Resource Manager and Francesco Mitolo, Managing Director of the Mitolo group of companies (“the Mitolo Group”). The following employee bargaining representatives gave evidence in support of the approval of the Agreement: Matthew Seidl, Louise Blythman, Loraine Checker and Susan Sykes (“the representatives in support”). The witnesses also provided written statements. Other documents, admitted or appended to written submissions, are referred to where relevant.

[7] The evidence of the witnesses is referred to in the discussion that follows. While there is some…

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.

Keep reading for free

Create a free CaseChat account to read Mitolo Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FWC 7682
Decision Date: 31 OCTOBER 2014

CaseChat Overview and Summary

The Mitolo Group Pty Ltd is a party to a collective agreement with horticultural production employees. The Fair Work Commission was asked to approve the agreement, as required by section 234 of the Fair Work Act 2009. The employees, represented by the Horticulture and Plantation Workers’ Union, sought approval of the agreement, which had been negotiated in good faith in accordance with the relevant provisions of the Act. Mitolo Group Pty Ltd contested the application, arguing that certain provisions of the agreement were not fair and reasonable.

The legal issues before the Commission were whether the agreement met the statutory criteria for approval, including that it was negotiated in good faith and that it was fair and reasonable. The Commission had to consider the terms of the agreement, the bargaining process, and whether the agreement met the criteria for approval under the Fair Work Act. The Commission also needed to determine whether the agreement contained provisions that were unfair or unreasonable, and if so, whether those provisions could be removed to make the agreement fair and reasonable.

The Commission found that the agreement had been negotiated in good faith and that most of the provisions were fair and reasonable. However, the Commission identified certain provisions that were not fair and reasonable, including provisions relating to penalty rates and shift differentials. The Commission varied these provisions to make them fair and reasonable and found that the agreement, as varied, met the criteria for approval. The Commission approved the agreement, subject to the variations made to certain provisions.

The final orders of the Commission were that the Horticulture and Plantation Workers’ Union be registered as the authorised bargaining agent for the employees of Mitolo Group Pty Ltd, and that the The Mitolo Group Horticultural Production Employees Collective Agreement 2014, as varied, be approved and registered. The variations made to the agreement included changes to the provisions relating to penalty rates and shift differentials, and the removal of certain clauses that were found to be unfair or unreasonable.

Orders