Parmalat Australia Pty Ltd

[2014] FWC 7811

[2014] FWC 7811

FAIR WORK COMMISSION

STATEMENT & DIRECTIONS

Fair Work Act 2009
s.185—Enterprise agreement

Parmalat Australia Pty Ltd
(AG2014/9687)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 3 NOVEMBER 2014

Application for approval of the Parmalat Lidcombe Plastics Employees Enterprise Agreement 2014.

[1] I am currently considering the application for approval of the Parmalat Lidcombe Plastics Employees Enterprise Agreement 2014 (the Agreement) which was filed with the Commission on 27 October 2014 by Parmalat Australia Pty Ltd (Parmalat). The application in this matter identified that there were two employee organisations who were employee bargaining representatives for the Agreement, namely the National Union of Workers, New South Wales Branch (the NUW) and the Textile, Clothing and Footwear Union of Australia (the TCFUA).

[2] A number of issues arise in relation to this matter which I set out below:

1. The Statutory Declaration of Mr Gavan, Form F17 filed in this matter, identifies that on 3 October 2014 and 13 October 2014 two notices were issued to employees advising employees of a vote of employees to be held on 14 October 2014. The notice issued on 3 October identifies that a vote will be held “at designated times for each shift” on 14 and 15 October. The notice issued on 13 October identified that the dates of the vote would be 14 and 15 October and that the times for the vote would be:

“Between 05.30am and 06.30am for Night Shift and Day Shift employees AND

Between 1.30pm and 2.30pm for day and Afternoon Shift employees.”

The notice issued on 13 October 2014 meets the content requirements of a notification required to be given under.180(3) of the Act but fails to meet the requirement in s.180(3) that such notification is given “by the start of the access period for the agreement”.

The notice issued on 3 October 2014 meets the requirement in s.180(3) that such notification is given “by the start of the access period for the agreement” but it appears that the content of the notice may not meet the content requirements of a notification required to be given under.180(3) of the Act.

Do either of the notices issued on 3 October 2014 and 13 October 2014 meet the full requirements of s.180(3) of the Act?

2. Clause 6.1 of the Agreement describes the group of employees to be covered by the Agreement both in relation to the nature of the work performed and in relation to union coverage.

It is not clear what is meant by the phrase “who perform Plastic Blow Moulding work”. The classification structure which is attached to the Agreement as part of Appendix A contains classifications which would not, at first glance, appear to be involved in the performance of Plastic Blow Moulding work.

The Form F17 identifies that there are 22 employees to be covered by this Agreement. Parmalat need to identify to the Commission the work performed by each of these 22 employees and how that work is comprehended by the phrase “who perform Plastic Blow Moulding work”. Further if the phrase “who perform Plastic Blow Moulding work” is intended to cover work which is not currently performed by the existing 22 employees then Parmalat need to identify the coverage intended by the phrase “who perform Plastic Blow Moulding work”.

Further, in relation to each of the 22 current employees and in relation to any prospective employee who is employed to “perform Plastic Blow Moulding work” Parmalat need to identify which such employees are “able to be covered by the National Union of Workers, New South Wales Branch”. The word “covers” is a defined term in the Act but only in relation to specified industrial instruments. I presume that the use of the word “covered” in relation to the NUW is intended to refer to the NUW’s eligibility rule. If so, then how are employees “who perform Plastic Blow Moulding work” eligible for membership of the NUW? If not, what is meant by “covered” and how are employees “who perform Plastic Blow Moulding work” able to be covered by” the NUW?

The Form F17 declares that this Agreement covers all of the employees of the employer other than senior executives. Given the language of clause 10 of the Agreement it would appear that, at the very least, there are other production employees employed at the Lidcombe site. The language of clause 10 of the Agreement suggests that the Form F17 statutory declaration is false. Also the Commission has approved other enterprise agreements where the employer is identified as Parmalat Australia Pty Ltd the same employer in this matter, eg Parmalat Australia - Rowville - TWU/NUW Enterprise Agreement 2014-2017, [2014] FWCA 4873.

Parmalat should provide evidence as to the truth of the answer to question 2.2 in the Form F17. If Parmalat concedes that the Form F17 is not true and that the answer to question 2.2 is false then it would appear that the Commission could not, on the basis of the Form F17, be satisfied as to the requirement of s.186(3) of the Act. Therefore Parmalat need to address the issue as to whether the group of employees to be covered by this Agreement has been fairly chosen.

3. The Commission accepts that clause 9.1 of the Agreement does not incorporate any award into the Agreement. Whilst clause 9.1 refers to inconsistencies between the Agreement and the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) no such inconsistencies can arise where the Award is not incorporated into the Agreement.

4. It is not clear whether clause 10 of the Agreement operates to vary the Agreement if “an appropriate classification and wage structure” is developed during the life of this Agreement.

5. Clause 11.3 contains a prohibition on the termination of the Agreement other than by agreement. Such a prohibition is contrary to the rights of persons covered by the Agreement to utilise either subdivision C or D of Division 7 of Part 2-4 of the Act. Can or should the Commission approve the Agreement whilst it contains the last sentence of clause 11.3?

6. Clause 13 does not meet the requirements of s.205 of the Act.

7. Clause 14.1 provides that in relation to the dispute settlement procedure that “(t)he accredited Union job representative will be the only person entitled to make representations on behalf of members of the Union employed by the employer”. How does this provision of the Agreement meet the requirements of s.186(6)(b) and the object set out in s.3(e) of the Act.

8. Whilst clause 14 provides an apparently comprehensive dispute resolution procedure it is predicated upon a union member only being represented by a union job representative. Is it the case that where an employee (whether or not a union member) is represented by someone other than a union job representative that clauses 14.2, 14.4, 14.5, 14.6 and 14.7 do not apply and that only clauses 14.3, 14.8, 14.9, 14.10 and 14.11 constitute the dispute resolution procedure?

9. Clause 21.2.2 gives Parmalat the right to withhold monies from an employee’s final pay where the employee is alleged to have failed to give the correct amount of notice. I have considered this issue before and concluded that such a clause cannot be in an enterprise agreement. Other more senior members of the Commission have come to the same view. Does Parmalat contend that the Commission can and must approve the Agreement containing clause 21.2.2?

10. Clause 21.5 provides every employee with a protection against unfair dismissal. It would appear that clause 21.5 is an unlawful term because of the operation of s.194(c) of the Act. Does Parmalat contend that clause 21.5 is not an unlawful term?

11. I note that the First Aid allowance, Meal allowance, Motor Vehicle Allowance and Hot Weather Rates contained in clause 25 are all well below the rates provided in the Award. The comparisons are as follows:

Allowance	Agreement Rate	Award Rate
First Aid	$10.81	$14.85
Meal	$11.72	$13.23
Motor Vehicle	65 cents per km	78 cents per km
Hot Weather	37 cents per hour when temperature between 46° and 54°; 46 cents per hour when temperature exceeds 54°	56.956 cents per hour when temperature between 46° and 54°; 74.632 cents per hour when temperature exceeds 54

Does this have any impact on the satisfaction of the Better Off Overall Test?

12. Each of Clause 35 and 36 deal with matters contained in the NES, namely Personal/Carers Leave and Compassionate Leave.

The definition of ‘immediate family’ in each of the first paragraph of clause 35 and the first paragraph of the clause numbered 38.1 but which is part of clause 36, lists a number of relationships which is less than that provided for in the Act.

The second paragraph of the clause numbered 38.1 which is part of clause 36 provides a better entitlement than the NES to employees in relation to the death of the employee’s immediate family or household. However the language of the paragraph suggests that the term “immediate family” may have a narrower meaning than provided for in the Act.

It would appear that clauses 35 and 36 may be terms that contravene s.55 of the Act and if so it would appear that the Agreement cannot be approved given s186(2)(c) of the Act. Does Parmalat contend that clauses 35 and 36 do not contravene s.55?

13. Clause 41.1.2 provides employees with a qualified entitlement to public holidays which are additional to those listed in clause 41.1. The qualification contained in clause 41.1.2 appears to be in direct conflict with the entitlement to additional public holidays in s.115(1)(b) of the Act.

It would appear that clause 41.1.2 may be a term that contravenes s.55 of the Act and if so it would appear that the Agreement cannot be approved given s186(2)(c) of the Act. Does Parmalat contend that clause 41.1.2 does not contravene s.55?

14. Clause 41.6 provides for two circumstances where an employee will not be paid for a public holiday. Clause 41.6.1 provides that an employee will not be paid for a public holiday where the employee was required to work the public holiday and “fails to attend for duty on that day without reasonable excuse”. This provision partially reflects the provisions of s.114(4) of the Act. Clause 41.6.2 provides that an employee will not be paid for a public holiday where the employee is absent from work on the day before or the day after a public holiday without reasonable excuse.

Both clause 41.6.1 and 41.6.2 are directly contradictory to the provisions of s.116 of the Act.

It would appear that clauses 41.6.1 and 41.6.2 may be terms that contravene s.55 of the Act and if so it would appear that the Agreement cannot be approved given s186(2)(c) of the Act. Does Parmalat contend that either or both of clauses 41.6.1 and 41.6.2 do not contravene s.55?

15. Clause 41.12 deals with the issue of employees being required to work on public holidays. The provisions of clause 41.12 do not mirror the provisions of s.114(3) and (4) of the Act.

It may be that clause 41.12 is a terms that contravene s.55 of the Act and if so it would appear that the Agreement cannot be approved given s186(2)(c) of the Act. Does Parmalat contend that clause 41.12 does not contravene s.55?

16. Clause 44.3 creates a liability on employees and requires an employee to replace or pay for any tools provided by the employer and lost by the employee through the employee’s negligence.

There is no equivalent provision in the Award. Does this have any impact on the satisfaction of the Better Off Overall Test?

As the clause refers to the employee paying for lost tools, is payment sought by Parmalat on the basis of presenting an account to the employee or on the basis of Parmalat making a deduction from the pay of the employee?

If the clause operates to either require the employee to spend money on buying replacement tools or operates to permit a deduction from pay how does Parmalat contend that this is not an unreasonable payment and/or deduction for the benefit of the employer as referred to in s.326 of the Act.

17. Page 39 of the Agreement contains the signatures of the employee bargaining representatives and of Parmalat. However the signatory for Parmalat, Mr Filip Milic has not provided an address as required by Regulation 2.06A(2)(b) of the Fair Work Regulations.

Non compliance with Reg 2.06A means that the Commission does not have a valid application before it. Does Parmalat contend that Reg 2.06A has been complied with.

18. I observe that a number of clauses of the Agreement have numbering problems. These clauses are 25.6, 35, 36, 38, 41.1 and all clauses after clause 47.

[3] I will provide Parmalat as the applicant in this matter, and the NUW and the TCFUA as bargaining representatives for employees, an opportunity of responding to the above issues as they see fit. Some issues may be addressed through Parmalat offering undertakings but a number of issues cannot be addressed through undertakings.

[4] Any response, including the offering of any undertakings is to be filed with the Commission and served on the other bargaining representatives by close of business on Wednesday 12 November 2014.

[5] I direct Parmalat to take reasonable steps to ensure that the employees to covered by the Agreement have access to a copy of this Statement.

COMMISSIONER

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