Pathfinder Events Pty Ltd
[2010] FWA 5990
•9 AUGUST 2010
[2010] FWA 5990 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Pathfinder Events Pty Ltd
(AG2009/20409)
Entertainment and broadcasting industry | |
COMMISSIONER ASBURY | BRISBANE, 9 AUGUST 2010 |
Pathfinder Events Enterprise Agreement 2009.
Background
[1] On 17 December 2009, an application was made under s.185 of the Fair Work Act 2009 (the FW Act) for approval of the Pathfinder Events Enterprise Agreement 2009 (the Agreement). The employer conducts laser skirmish games and charges a fee to players. The Form F17 - Employer’s Declaration filed with the Agreement states that the kind of work to be done by employees under the Agreement is: referees, ticket sellers, quarter masters and customer service attendants. The Agreement is to operate in Queensland. In response to a question in the Declaration requesting the identification of all reference instruments (relevant awards or notional agreements preserving State awards) for the purposes of the no-disadvantage test, the Declaration states:
“AWARD FREE”.
[2] The employer did not make an application under Schedule 7, item 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) for FWA to designate an award for the purposes of the no-disadvantage test. In January 2010 I attempted to list the application for approval of the Agreement for hearing, in order to outline a number of concerns I had in relation to whether employees covered by the Agreement are award free and the implications of this in relation to the Agreement passing the no-disadvantage test. The applicant requested that any issues in relation to the Agreement be raised in writing, and that the application for approval of the Agreement be dealt with on the basis of documents on the file. The correspondence in relation to this matter between FWA and the employer can be summarised as follows:
- Letter to employer of 5 February 2010 advising of concerns in relation to whether employees are award free and requesting that the employer consider whether the Outdoor Leaders Award - State 2005 (the Outdoor Leaders Award) should be designated for the purposes of considering whether the Agreement passes the no-disadvantage test;
- Response from employer of 10 February 2010 contending that employees are award free and that it would not be appropriate to designate the Outdoor Leaders Award;
- Letter to employer of 23 April 2010 stating there are any number of awards other than the Outdoor Leaders Award, that cover employees performing work of the kind described in the Agreement, that would meet the requirements for designation, including the Clerical Employees Award - State, the Engineering Award - State and the Miscellaneous Workers Award - State; indicating that any submissions the employer may wish to make on whether one of these Awards is more appropriate, would be considered; and that if further submissions were not received that the Outdoor Leaders Award would be designated;
- Letter to employer of 17 June 2010 advising that the Outdoor Leaders Award - State was to be designated for the purposes of determining whether the Agreement passes the no disadvantage test, and advising of issues with the terms of the Agreement in relation to casual loading, public holiday penalty rates, weekend penalty rates and the payment of “additional hours” at ordinary rates.
[3] The letter to the employer of 17 June 2010 set out proposed undertakings and informed the employer that if the undertakings were provided the application for approval of the Agreement would be approved. The employer was also informed that if the undertakings were not provided the application for approval of the Agreement would be refused. The employer has not responded to this correspondence or provided the proposed undertakings. Accordingly I set out below reasons for refusing to approve the Agreement.
Legislative provisions
[4] By virtue of item 2, Schedule 7 of the Transitional Act, where an application to Fair Work Australia (FWA) for approval of an enterprise agreement is made before 1 January 2010, s.186(2) of the FW Act operates so that FWA must be satisfied that the agreement passes the no-disadvantage test. For the purposes of determining whether an agreement passes the no-disadvantage test, FWA must be satisfied that the agreement does, or would not result, on balance, in a reduction of the overall terms and conditions of the employees who are covered by the agreement, under any reference instrument relating to one or more of the employees. 1
[5] Item 4 of Schedule 7 of the Transitional Act provides at sub-item 3 that an agreement is taken to pass the no-disadvantage test if there is no reference instrument in relation to any of the employees covered by the agreement. Sub-item 4 of Schedule 7 states that if there is a reference instrument in relation to one or more, but not all of the employees, and the agreement passes the no-disadvantage test in respect of that employee or employees, then the agreement passes the no-disadvantage test for all employees. Sub-item 4 also states that if there is a reference instrument in relation to one or more employees and the agreement does not pass the no-disadvantage test in respect of that employee or employees, then it does not pass the no-disadvantage test for any employee covered.
[6] The term “reference instrument” is defined in Schedule 7 of the Transitional Act, at item 5(1) as a “relevant general instrument” or a designated award. A relevant general instrument is defined in item 5(2) of Schedule 7 for an employee who is covered by an enterprise agreement, as:
“...an award based transitional instrument:
(a) that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and
(b) that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under s. 185 of the FW Act.”
[7] Item 8 of Schedule 7 of the Transitional Act provides as follows:
“8. Designated awards - after application for FWA approval
(1) This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement.
(2) FWA must determine that an award is a designated award for the employee or employees referred to in subitem (1), if it is satisfied that:
(a) on the date on which the application for approval of the enterprise agreement was made under section 185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:
(i) are usually regulated by an award; or
(ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and
(b) there is an award that satisfies the requirements specified in subitem (3).
(3) An award or awardsdetermined by FWA under this item:
(a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and
(b) must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no-disadvantage test; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
(4) FWA may determine different awards under subitem (2) in relation to different employees.
(5) A determination made under this item is not a legislative instrument.”
Agreement Classifications
[8] The agreement contains a classification structure at Schedule A clause 16.1 which refers to employees at various levels undertaking a range of duties including:
- Customer service;
- Labouring;
- Driving a motor vehicle;
- Painting and digging;
- Packing and unpacking vehicles;
- Testing and aligning equipment;
- Washing clothing;
- Workplace health and safety;
- Attending registration counter;
- Cash handling and EFTPOS transactions;
- Maintaining records, telephone operations, cash register operations; invoice processing, stock control and operating games and amusements;
- Rigs and/or dismantles steel inflatables or timber components either as a temporary or permanent structure; and
- Non-trade level preparation, marking out, fabrication, installation or erection;
Employer Submissions
[9] The employer maintained its view, via several pieces of correspondence, that employees are not covered by a relevant general instrument and are award free. In relation to the Outdoor Leaders Award, the employer said that while laser skirmish games would fall within the broad definition of outdoor activities in that Award, employees did not meet the requirements in terms of the skills exercised by employees under the Award. It was also contended that the level of autonomy, authority and responsibility of an outdoor leader under the Outdoor Leaders Award clearly exceeds that of games referee under the Agreement. Further, the employer maintained that the Outdoor Leaders Award provides a qualification driven classification structure, rates of pay and relativities, and specifies formal qualifications in sport and recreation or outdoor recreation, increasing at each level. This was contrasted with employees involved in laser skirmish, who require no experience or qualifications, and who perform work which is primarily labour intensive, and have skills that are learned through basic on the job training.
[10] It was submitted that laser skirmish uses harmless infra-red technology and therefore does not require any safety training by employees. There is no requirement for employees to hold first aid qualifications, but the value of these is recognised by virtue of the provision of an allowance in the Agreement. While it was acknowledged that the kind of work performed by employees under the Agreement at some levels, reflects some of the duties of employees covered by the Outdoor Leaders Award, the employees covered by the Agreement are not engaged in the same kind of work as that covered by the Award. For these reasons, the Outdoor Leaders Award is not relevant for the purposes of the no-disadvantage test.
Conclusions in relation to award coverage
[11] I do not accept the submission that employees covered by the Agreement are award free. In any event, it is not determinative that employees covered by the Agreement are or were award free. What is relevant is whether, when the application for approval of the Agreement was made, employees performing work in the classifications found in the Agreement would, while performing such work in the State of Queensland, be employed in an industry or occupation in which terms and conditions of the kind of work performed by those employees, are regulated by a relevant general instrument, or would usually be so regulated.
[12] The Outdoor Leaders Award applies as stated in clause 1.5.1 as follows:
“1.5.1 This Award applies to all employees who are employed in or in connection with: the conduct of outdoor activities (or 'simulated' outdoor activities in indoor environments); instructing participants in the skills necessary to undertake such activities; and to employees of contractors and sub-contractors engaged substantially to undertake work at or for establishments providing these activities. However, this Award will not apply to employees who have the autonomous right to hire and or terminate other employees.”
“Outdoor activities” are defined in clause 1.3.1 of the Outdoor Leaders Award as follows:
“1.3.5 ‘Outdoor Activities’ means those non competitive physical activities undertaken in an outdoor environment or simulated outdoor environment for the purposes of recreation, education, personal and/or professional development, adventure therapy, adventure-based counselling, tourism or ecotourism. Outdoor activities include (but are not limited to) non-competitive:
abseiling and canyoning
ballooning
boating/sailing and sailboarding/windsurfing
bungy jumping
bushwalking
camping
canoeing and kayaking (river and sea)
caving
climbing
cycling and mountain bike riding
fishing
fossicking/collecting
four-wheel-driving
hang-gliding/para-gliding/parachuting
horse riding
hunting (recreational) and shooting (recreational)
jet skiing
kite flying
motor/trail bike riding
orienteering and rogaining
picnicking
rafting
ropes courses
scuba diving and snorkelling
skateboarding/rollerblading
skiing (snow): cross country/nordic and downhill; snowboarding
surfing
waterskiing”
The term “outdoor industry” is defined in clause 1.3.6 as follows:
“1.3.6 ‘Outdoor Industry’ means the individuals and enterprises associated with the provision of non competitive outdoor activities and associated services for the variety of purposes detailed in clause 1.3.5.”
[13] The classification definitions in the Outdoor Leaders Award, set out in Schedule 1 include administration, hospitality, retail, grounds maintenance, preparation and maintenance of outdoor equipment, maintaining facilities and equipment and require a first aid certificate. In my view, one or more of the employees covered by the Agreement would have terms or conditions of employment regulated by this Award, or would usually be so regulated. I am also of the view that item 8 of Schedule 7 of the Transitional Act operates so that this Award should be designated for the purposes of determining whether the Agreement passes the no-disadvantage test.
Designated Award
[14] I determine that the Outdoor Leaders Award - State 2005 (Qld) is the designated award pursuant to item 8 Schedule 7 of the Transitional Act, for an employee or class of employees of the employer, for the purpose of determining whether the Agreement passes the no-disadvantage test.
The no-disadvantage test
[15] After considering the substantive terms of the Agreement, I have concerns about whether it passes the no-disadvantage test when considered against the terms of the Outdoor Leaders Award. These concerns are based on the following issues. The Agreement provides for work on public holidays to be paid for at ordinary rates, in contrast with the Outdoor Leaders Award, which requires work on public holidays to be paid for at the rate of double time and a-half, with a minimum payment of four hours.
[16] The Agreement provides for ordinary work to be performed on weekends and does not provide for any penalty payments for such work. This can be contrasted with the Outdoor Leaders Award which provides for ordinary work between midnight Friday and midnight Saturday to be paid for at the rate of time and a-quarter and for ordinary work between midnight Saturday and midnight Sunday to be paid for at the rate of time and a-half.
[17] The Agreement entitles the employer to require employees to work reasonable additional hours and to pay for those hours at ordinary rates. The Agreement also provides for additional hours to be banked and taken as time off at a later date. The Outdoor Leaders Award provides that time worked outside of or in addition to ordinary hours is paid at overtime rates. The Outdoor Leaders Award also provides for time off in lieu of overtime, but this is required to be agreed between the employer and the employee in writing, rather than being imposed on the employee at the discretion of the employer. The casual loading in the Agreement is set at 20% in contrast to 23% under the Outdoor Leaders Award.
[18] The wage rates in the Agreement are less than those under the Outdoor Leaders Award. However, this does not automatically result in the Agreement failing the no-disadvantage test, given s.206 of the Act which requires that employees are paid at least the minimum rate under a modern award or the national minimum wage. However, the wage rates in the Agreement are not sufficient to provide a benefit to offset the reductions in terms and conditions in comparison to those in the Outdoor Leaders Award.
[19] Accordingly, I am not satisfied that the Agreement passes the no-disadvantage test. The employer has been given an opportunity to provide undertakings to address these issues and has not done so. The application for approval is refused. I Order accordingly.
COMMISSIONER
1 Item 4 sub-item 1 of Schedule 7 of the Transitional Act.
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