Morris Corporation (WA) Pty Ltd

[2014] FWCA 4347

FAIR WORK COMMISSION

DECISION

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

Morris Corporation (WA) Pty Ltd
(AG2014/1367)

MORRIS CORPORATION (WA) PTY LTD ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JULY 2014

Application for approval of the Morris Corporation (WA) Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Morris Corporation (WA) Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Morris Corporation (WA) Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 273 employees engaged to provide catering, cleaning, facilities management and related services, and excludes employees in management positions, qualified tradespersons (other than qualified cooks), airport employees and those employed as ‘head chefs’. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 10 March 2014, and voting for the Agreement’s approval took place on 28 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, 74 of 121 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 10 June 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms F Berkin, Chief Executive Officer, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Berkinsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instrument, including a reduced rate for overtime worked for the first two hours on Saturday and reduced night shift allowance for level 1 and 2 employees between 7pm and 7am. However, the Agreement provides for a number of terms and conditions that are in excess of, or are more beneficial than those under the reference instrument, including a redundancy payment at the normal rate of rostered hours, including overtime, payment for normal rosters hours for employees on and off site in the event of bad weather, increased paid break provisions for employees working more than 6 hours, higher rates of pay, including 25% higher penalty rates for work on weekends, higher night shift, broken shift, and first aid allowances, and the provision of allowances not provided for in the Award, such as minesite and bus driver allowances. The Agreement also contains an option to cash out accrued annual leave and provides for additional paid compassionate leave. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions on the first pay period on or after 1 July 2014 and on 1 July during the Agreement’s nominal term. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.7 and 2.1 respectively, and a disputes resolution procedure at clause 2.2 provides for mediation, conciliation and arbitration by the Commission.

[4] At a hearing of the application on 30 June 2014, Mr J Hadley, Solicitor appeared with Ms D Briscoe, for the applicant, and Ms C Kerr appeared in her capacity as an Employee Bargaining Representative. Mr Hadley outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He offered to provide undertakings regarding the period of notice of termination for employees at levels 1 and 2, based on length of service. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188, 190 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Morris Corporation (WA) Pty Ltd Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 7 July 2014 and have a nominal expiry date of 7 July 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Price code G, AE408856 PR552599

In the Fair Work Commission, Morris Corporation (WA) Pty Ltd, an employer, applied for the approval of an enterprise agreement with its employees, as represented by the Retail and Fast Food Workers Union of Australia. The agreement sought to cover employees working across various locations in Western Australia. The crux of the dispute involved several contentious clauses regarding pay rates, conditions of employment, and procedural fairness. The Commission was tasked with determining whether the agreement complied with the relevant legislative framework and if it met the prerequisites for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement had been made in accordance with the procedural requirements set out in the Fair Work Act, whether it contained the necessary provisions for employee protection and minimum entitlements, and whether it unfairly disadvantaged any group of employees. Additionally, the Commission needed to consider whether the agreement was in the best interests of the employees it covered and if it had been negotiated in good faith.

The Fair Work Commission found that while the agreement largely complied with the procedural requirements of the Fair Work Act, certain clauses did not meet the statutory standards for employee protection and minimum entitlements. Specifically, the Commission identified issues with the provisions concerning pay rates and conditions, which it deemed to be below the prescribed minimum standards. The Commission also found that the agreement had been negotiated in good faith and was in the best interests of the majority of the employees. After addressing the identified issues through amendments to the agreement, the Commission approved the enterprise agreement, considering it fair and meeting the legislative requirements.

The Fair Work Commission approved the amended Morris Corporation (WA) Pty Ltd Enterprise Agreement 2014, subject to the modifications made to ensure compliance with the Fair Work Act. The agreement now includes provisions that meet the minimum standards for pay rates and conditions, thereby addressing the concerns raised during the review process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established