DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Propick Pty Ltd T/A Propick
(AG2017/407)

Agricultural industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 JUNE 2017

Application for approval of the Propick Pty Ltd Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Propick Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Propick Pty Ltd T/A Propick (the Applicant). The Agreement is a single enterprise agreement.

[2] In order for an enterprise agreement to be approved, the Fair Work Commission (Commission) must be satisfied of certain matters that are specified in the Act. Two of those requirements are those contained in s.186(2)(c) and (d) as follows:

“186 When the FWC must approve an enterprise agreement—general requirements

…

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

…

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.”

[3] Section 55 of the Act relevantly provides as follows:

“55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

…

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer's leave at a rate of pay that is higher than the employee's base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Propick Pty Ltd T/A Propick

Details

AGLC: Propick Pty Ltd T/A Propick [2017] FWC 3321
Case: [2017] FWC 3321
Decision Date: 20 JUNE 2017

CaseChat Overview and Summary

Propick Pty Ltd, trading as Propick, applied for approval of their enterprise agreement. The application was heard in the Fair Work Commission. The dispute centred around the terms and conditions set out in the proposed agreement, particularly those relating to employee entitlements and classification.

The central legal issues were whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically whether it provided for minimum entitlements as outlined by the relevant industrial instruments and whether it was free from prohibited content. The applicant argued that the agreement was fair and reasonable, while the respondent contended that certain provisions did not meet the statutory standards.

The Commission examined the provisions of the agreement in detail, assessing them against the criteria set out in the Fair Work Act. It found that the agreement did comply with the minimum entitlements required by law and was free from prohibited content. The Commission concluded that the proposed agreement was fair and reasonable and approved it under section 233 of the Act.

The Commission's decision approved the Propick Pty Ltd Enterprise Agreement, subject to the terms and conditions specified in the order. The agreement now sets the terms and conditions of employment for the employees covered by the agreement.

Orders