PFD Food Services Pty Ltd

[2013] FWCA 7072

[2013] FWCA 7072

FAIR WORK COMMISSION

DECISION

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

PFD Food Services Pty Ltd
(AG2013/2292)

PFD FOOD SERVICES PTY LTD (BRISBANE) & TWU ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 17 SEPTEMBER 2013

Application for approval of the PFD Food Services Pty Ltd (Brisbane) & TWU Enterprise Agreement 2013.

[1] An application has been made for approval of an Enterprise Agreement known as the PFD Food Services (Brisbane) & TWU Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). Section 185 is in Part 2–4 of the Act which provides for the making of Enterprise Agreements between an employer and their employees who are employed at the time the agreement is made and who will be covered by the agreement. The application has been made by PFD Food Services Pty Ltd (the Applicant). The Agreement is a single-Enterprise Agreement.

[2] The Agreement covers all employees engaged at the Lytton Queensland branch of the company covered by the Classifications specified in the Agreement. I am satisfied that the group of persons to be covered is operationally and geographically distinct and that the group has been fairly chosen.

[3] The application for approval was received by Fair Work Commission on 9 August 2013. The delays in finalising this matter have been due to extensive correspondence between FWC and the Applicant aimed at resolving a number of concerns I had about the Agreement:

● FWC wrote to the Applicant outlining a number of concerns on 20 August 2013 requesting a response by 26 August 2013. The Applicant sought an extension to reply which was granted.

● The Applicant responded on 30 August 2013 offering certain undertakings.

● The TWU provided a response on 2 September 2013.

● FWC wrote further to the Applicant on 3 September 2013 welcoming certain undertakings but suggesting an alternative undertaking in respect to two matters.

● The Applicant responded on 6 September 2013 with further alternative undertakings. Following a telephone conversation with the Applicant’s representative further amended undertakings were proposed on 10 September 2013.

● FWC responded to the proposed undertakings on 11 September 2013 indicating what would be acceptable.

● The Applicant responded on 12 September 2013 proposing further amendments to the undertakings.

● FWC responded on 13 September 2013 advising that if the undertakings were provided in the form suggested they would be accepted but if not the matter would be listed for hearing on 17 September 2013 to provide the employer with an opportunity to make submissions as to why the Commissioner should not make a decision not to approve the agreement.

[4] The meal allowance and rest break provisions in the Agreement disadvantage employees when compared to the relevant Award, however, I am satisfied that the more beneficial pay rates in the Agreement ensure that employees are Better Off Overall.

[5] The Agreement provisions in respect to spread of hours were unclear. It was possible to read the provisions as allowing for indefinite extensions to the spread of hours without compensation which would prevent the Agreement from meeting the Better Off Overall Test. This matter was resolved by the provision of two undertakings. The first clarified that the flexibility in respect to organisation of the 38 hour week and in respect to the start and finish time for shifts operated within the spread of hours for day work, morning shift, afternoon shift and night shift defined elsewhere in the Agreement. The second clarified that any variation to the spread of day work hours was subject to the provisions of the individual flexibility arrangement clause to ensure that employees were better off overall.

[6] The penalty rates for work on Saturday for all workers and for afternoon and night shift workers on Sunday are significantly less than the Storage, Services and Wholesale Award 2010 and the Road Transport and Distribution Award 2010. I was satisfied and the Applicant accepted that a casual or part time worker who worked a significant proportion of their hours on the weekend would not be Better Off Overall. A full time worker who worked an afternoon or night shift longer than 8 ordinary hours on a Sunday or more than 9.5 ordinary hours on a Saturday would not be Better Off Overall.

[7] I am satisfied that an undertaking offered in respect to the weekend shifts in excess of 8 ordinary hours will ensure that these employees are Better Off Overall. That undertaking is as follows:

“In the event that a 4 day roster of between 8 and 9.5 ordinary hours per day is introduced, permanent afternoon and night shift employees working beyond eight ordinary hours on a Sunday will receive an additional allowance of $20 per week. Casual employees working this roster will receive a $25 per week allowance. There will be no additional payment for work on Saturday on such a roster. In the event that an employee is required to work more than 9.5 ordinary hours per day on Saturday or Sunday then work beyond 9.5 hours will be paid at overtime rates on the Saturday and all work beyond 9.5 hours will be paid at double time on the afternoon and night shift on a Sunday.”

[8] In respect to the matter of casual or part time employees working a large proportion of their hours on weekends after extensive correspondence the Applicant was prepared to offer the following undertaking:

“PFD Food services will not actively engage casual and part-time employees to regularly work more than 25% of their ordinary hours on a Saturday, or regularly more than 25% of their ordinary hours on night or afternoon shifts on Saturdays and Sundays combined in any 28 day period.

However, as a safeguard in the event that this occurs by mutual agreement or otherwise, PFD Food Services will undertake a reconciliation of the working hours of all casual and part time employees at a maximum of 6 monthly intervals. In the event that the reconciliation shows that an employee has worked more than 25 % of their ordinary hours on a Saturday or more than 25% of their ordinary hours on night or afternoon shifts on Saturdays and Sundays combined in any 28 day period the employee will receive an additional payment in respect of each additional hour worked beyond 25% in any 28 day period which is the difference between the rate paid and the relevant rate for the Saturday or Sunday work for a casual or part time employee under the Storage Services and Wholesale Award or the Road Transport and Distribution Award applicable at that time. The reconciliation, and any additional payment if required, will take into account any difference in the overtime hours of work the employee may have performed during the 28 day period.

Any employee who leaves the company (for whatever reason) in between the 6 monthly intervals will have their reconciliation undertaken at the time their employment ends.”

[9] I advised the Applicant that the underlined words added a level of complexity and uncertainty which I did not consider appropriate but that the undertaking without the additional words was acceptable and ensured that the affected employees would be Better Off Overall. On 16 September 2013 the Applicant provided the undertaking without the additional words.

[10] I am therefore satisfied that the undertakings ensure that the Agreement meets the Better Off Overall Test. I am satisfied that the undertakings do not cause financial detriment to any employee covered by the Agreement. At first glance the undertakings may appear to be substantial however in context this is not the case. The information provided by the Applicant satisfies me that the number of casual and part time employees is small. The current rosters worked in the enterprise do not involve working patterns which are affected by the undertakings. The BOOT applies to what is possible or permitted under the Agreement which is why the undertakings are necessary. However, in practice the undertakings do not involve substantial changes to the agreement.

[11] This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[12] The undertaking which now forms part of the Agreement is attached.

[13] 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.

[14] The Transport Workers’ Union of Australia has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 September 2013. The nominal expiry date of the Agreement is 30 June 2016.

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