Olmgrove Pty Ltd T/A Legune Station

[2015] FWCA 1955

[2015] FWCA 1955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Olmgrove Pty Ltd T/A Legune Station
(AG2014/8289)

LEGUNE STATION ENTERPRISE AGREEMENT 2014

Agricultural industry
VICE PRESIDENT LAWLER	SYDNEY, 16 MARCH 2015

Application for approval of the Legune Station Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Legune Station Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Olmgrove Pty Ltd, trading as Legune Station. The Agreement is a single-enterprise agreement.

[2] The Agreement does not make any provision for overtime. Rather, it provides for a daily rate that is calculated, across the year, to compensate employees in a manner that would be above what they would earn under the relevant award (the Pastoral Industry Award 2010 (Award)). I am satisfied that the proprietors of the Applicant company treat their employees well and have no intention to exploit them. Indeed, it is clear that they pride themselves on offering conditions that are as good as, or better than, conditions offered more generally in the pastoral industry in the Northern Territory.

[3] Nevertheless, it is possible to hypothesise circumstances where, in a four-week period in the peak work season, employees could hypothetically earn more under the Award than they would earn under the Agreement in respect of that same period.

[4] This would arise where employees were required to work significant weekend overtime, and exercised their Award right under clause 31.4 of the Award to claim payment for such overtime. In practice, such claims are never made.

[5] I am satisfied on the submissions of Mr Coyne of IR First - drawing upon his knowledge of the circumstances of the Applicant company, his knowledge of other agreements in which his firm has been involved, and also upon his knowledge of payment practices in the industry arising from his time as an inspector with a predecessor to the Fair Work Ombudsman - that, in practice, employees working on pastoral stations in the Northern Territory do not exercise the right conferred by Award clause 31.4 to claim payment for overtime.

[6] Nevertheless, a strict application of the BOOT gives rise to the possibility that in particular circumstances an employee exercising that right may be better off under the Award than they would be under the agreement.

[7] The BOOT is the only matter of concern in relation to the approval of the present agreement and pursuant to s.189 of the Fair Work Act 2009, I am satisfied that, because of exceptional circumstances, the approval of the Agreement would not be contrary to the public interest. I am satisfied that the Agreement, in the real world, leaves employees significantly better off than they would be if they were employed under the Award with the employer exercising its rights to retrench employees or stand them down during the periods in which no work was available - something the employer covered by the Agreement does not do. I am satisfied on the basis of the matters put by Mr Coyne that a number of stations in the Northern Territory have agreements that have been approved by the Commission with payment arrangements substantially identical to the payment arrangements provided for in the Agreement and that the circumstances in which the BOOT would not be satisfied by the Agreement are properly described as hypothetical.

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 March 2015. The nominal expiry date of the Agreement is 22 March 2016.

VICE PRESIDENT

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