P. Manettas & Co. Technical Pty Limited

[2024] FWCA 3900

[2024] FWCA 3900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

P. Manettas & Co. Technical Pty Limited

(AG2024/3565)

BIDFOOD TRUGANINA– ENTERPRISE AGREEMENT 2024

Food wholesaling industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 7 NOVEMBER 2024

Application for approval of the Bidfood Truganina– Enterprise Agreement 2024

Introduction

1. P. Manettas & Co. Technical Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Truganina– Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by either the Clerks – Private Sector Award 2020 (Clerks Award), Storage Services and Wholesale Award 2020 (Storage Award), Road Transport and Distribution Award 2020 (Road Transport Award) or the Commercial Sales Award 2020 (Commercial Sales Award). The United Workers Union (UWU) was a bargaining representative for the Agreement.

Minimum Engagement

1. The Commission raised a concern with the Employer that clause 4.6 of the Agreement states that ‘where the agreement provides for a minimum engagement, save and except for public holidays, and a portion of that time is not worked by the Employee, then the time not worked will be paid at the Employee’s base rate of pay.’ The Agreement provides for minimum engagements for Saturdays and Sundays in clause 3.8.3. All of the respective Awards provide for minimum engagements on weekends to be paid at the penalty rate. Part-time and casual employees who work less than the minimum engagement period on weekends and work few hours in addition to this may not be better off overall under the Agreement compared to the relevant Award.

1. The Employer submitted that it is not reasonably foreseeable that part-time and casual employees will work less than the minimum engagement period on weekends and provided rosters from the last six months to support this submission. The Employer also provided undertakings to address the minimum engagement issue for casual employees. The UWU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that part-time employees of covered by the Agreement will not be required to work less than the minimum engagement.

Casual Loading Application

1. Clause 4.1.4(d) of the Agreement states that the casual loading shall not be paid on overtime or public holidays. Employees are entitled to receive their casual loading on overtime under clauses 21.1(d) of the Storage Award and 21.4(a) of the Clerks Award. Drivers are entitled to a 10% loading for overtime under clause 11.4 of the Road Transport Award. Similarly, casual employees are entitled to their loading applying cumulatively with public holiday penalties under clause 11.2 of the Storage Award and clause 11.1 of the Clerks Award as employees must be paid the loading for each ordinary hour worked. Rates of pay do not appear high enough to compensate if casual employees are required to work overtime or public holidays, particularly given they may do so with few ordinary hours to compensate. The Employer provided an undertaking to address this issue.

Annualised Salaries

1. Clause 3.2.1(b) of the Agreement makes provision for an annual salary for clerical employees, commercial sales employees and supervisors/managers that appears to be 5.84 – 11.14% above the relevant Award. Clause 1.2(b) defines a salaried employee as ‘an Employee who agrees to a salary with the Employer pursuant to clause 1.6 (Agreement Flexibility Clause & Annual Salary Clause) and who is employed as a salaried clerk, salaried sales representative, salaried supervisor or salaried manager.’ Clause 1.6.1(b) specifies the entitlements that the arrangement may deal with as including wages, shift penalties, weekend penalty rates, allowances, overtime, annual leave loading and public holiday penalties.

1. Clause 1.6.1(c) states ‘this clause can be used to make salary arrangements with an Employee.  The minimum salary for a salaried Employee is set out in clause 3.2.1(b) of this Agreement. Where a salaried Employee and the Employer agree to a salary pursuant to this clause then the list in subclause (b) above will satisfy the requirements at clause 1.6.3(d)(i) and (ii) of this Agreement)’ The requirements at clause 1.6.3(d) are in relation to an Individual Flexibility Arrangement (IFA) being in writing, signed and including the terms of the Agreement that will be varied by the arrangement and how the arrangement will vary the effect of the terms.

1. In my view, the requirements of ss. 202(1) and 203(3) of the Act cannot be subject to qualification. Clause 1.6.1(c) purports to do this and as such is inconsistent with the Act. The Employer provided undertakings to address this issue.

Span of Hours

1. Clause 4.1.1 of the Agreement provides for a 5:00am-7:30pm span for storage services employees, and a 4:00am-7:30pm span for road transport employees. Clause 13.1 of the Storage Award provides for a maximum span from 6:00am-6:30pm when altered by up to one hour at either end under clause 13.2. Clause 13.6(a) of the Road Transport Award provides for a maximum span from 4:30am-7:30pm, when altered by one hour at each end. Issues arise where dayworker storage employees work between 5:00am-6:00am or 6:30pm-7:30pm, or road transport employees (who are all dayworkers under clause 4.1.3(b)), work between 4am-4:30am or 6:30am-7:30am, which attracts overtime under clause 21 of both Awards respectively. Rates of pay may not be high enough to compensate, depending how frequently employees work in this pattern.

1. The Employer provided submissions that these employees are better off under the Agreement compared to the relevant Award due to higher base rate of pay under the Agreement which offsets the need for overtime loading typically required for work outside the Award span of hours.

Afternoon Shifts

1. Clause 3.7.3 of the Agreement defines an afternoon shift as a shift finishing after 7:30pm (or 8:00pm for clerks) and at or before 1.00am. Clause 20.1 of the Storage Award defines afternoon shifts as finishing at 6:00pm and at or before midnight, or at the latest after 7:00pm and at or before 1:00am where altered under clause 20.1(d). Clause 25 of the Clerks Award also defines afternoon shifts as finishing after 7:00pm, but before midnight. As such, issues arise where employees finish after 6:00pm (or 7:00pm if the span is altered) and before 7:30pm if they are storage employees, or after 7:00pm and before 8:00pm if they are clerks. Rates of pay will not be high enough to compensate for employees in classifications below Grade 2 Level 3 if they are storage employees or Grade 3 Level 3 if they are clerks.

1. The Employer provided submissions that the Clerks Award permits the spread of ordinary hours on shifts to be moved up to one hour forward or one hour back by agreement, which aligns with the provisions of the Agreement. For employees that would otherwise be covered by the Storage Award, the Employer provided rosters demonstrating that day workers and shift workers do not work ordinary hours between 6:30pm and 7:30pm, thus limiting any impact of the altered shift definition on employee’s pay. The UWU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that storage employees will not be required to work ordinary hours between 6:30pm and 7:30pm.

Night Shifts

1. The Agreement appears to be silent about night shifts, whereas the Storage Award provides 130% night shift penalties under clause 20.4 for a shift finishing after midnight and at or before 8:30am, and the Clerks Award provides penalties of 115% or 130% for permanent night shift for a shift finishing after midnight and at or before 7:00am. Rates of pay do not appear high enough to compensate for most classifications in respect of the 130% penalty, and for lower levels in respect of the 115% penalty. Issues arise for storage employees who finish after 1.00am and before 8:30am, and clerks who finish after 1.00am but before 7:00am who are not eligible for the morning shift penalty (commencing between 2:00am and 5:00am). Given the morning shift penalty is only 112.5%, there may be some instances where even if employees receive this, their pay rates will not be high enough to compensate for a permanent 130% penalty.

1. The Employer provided submissions that the Agreement does not have night shift provisions as it does not operate night shifts. The Employer further submitted that if employees were to work a shift that would be classified as a night shift under the relevant Award, they would receive an overtime penalty under the Agreement which is a higher penalty.

Morning Shifts

1. Clause 3.7.3 of the Agreement contains a morning shift definition of work commencing between 2:00am and 5:00am, whereas clause 20.1 of the Storage Award defines an early morning shift as commencing between 2:00am and 7:00am. As employees have a broader span commencing at 5.00am for storeworkers in clause 4.1.1(c)(i), it appears that any shift commencing at 5:00am and before 7:00am is paid at ordinary rates, whereas shift workers would otherwise be entitled to 112.5% early morning penalties. Rates of pay do not appear high enough to compensate for employees in Grade 1, Grade 2 Level 1 and Grade 2 Level 2 classifications.

1. The Employer submitted that a morning shift definition is unnecessary, as there is currently no morning shift. The Employer further submitted that the only storeperson who starts at 5:00 am is a leading hand classified at Grade 3 Level 2. The UWU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that storage employees classified below Grade 3 Level 2 will not be required to work ordinary hours between 5:00am and 7:00am.

Maximum Daily Hours

1. Clause 4.1.1(b) of the Agreement provides that day workers may work up to 10 ordinary hours per day and clause 4.1.4 provides that casual employees may work up to 10 ordinary hours per day. Clause 13.5 of the Road Transport Award provides a maximum of 8 hours per day.

1. The Employer submitted that the Agreement’s higher base rate sufficiently compensates drivers working up to 10-hour shifts, so they are better off overall compared to the Road Transport Award.

National Employment Standards (NES) precedence term in Clause 1.3.4 of the Agreement

1. Clause 2.2.8 of the Agreement provides that if the employee does not give the required notice of resignation, the Employer may deduct an amount from monies due to the employee. Further, clause 3.4.4 allows the Employer to deduct overpayments from an employee’s termination monies.

1. Clause 2.6.2 of the Agreement states that an employee will be deemed to have abandoned their employment if they have failed to attend for three consecutive rostered shifts. It is unclear whether termination is intended to take place, and if so whether the employee would be entitled to payment of notice of termination in accordance with ss. 117–123 of the Act.

1. Clause 7.1.6 of the Agreement provides that employees may be required to undergo absence management plans, which amongst other things may specify the types of evidence an employee may provide to substantiate personal leave and require employees to provide notice of absence by deadlines. This provision is stated to operate notwithstanding any evidence requirements of the Act and therefore appears to attempt to exclude the NES.

1. These clauses may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 1.3.4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The Employer provided written undertakings. A copy of the undertakings is attached in Appendix 6. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The UWU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 November 2024. The nominal expiry date of the Agreement is 1 August 2026.

DEPUTY PRESIDENT

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