Rapid Plas Pty Limited
[2024] FWCA 3823
•31 OCTOBER 2024
| [2024] FWCA 3823 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Rapid Plas Pty Limited
(AG2024/3598)
RAPID PLAS PTY LIMITED ENTERPRISE AGREEMENT 2024
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 31 OCTOBER 2024 |
Application for approval of the Rapid Plas Pty Limited Enterprise Agreement 2024
Introduction
Rapid Plas Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Rapid Plas Pty Limited Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Manufacturing and Associated Industries and Occupations Award 2020 (the Award).
Sufficient Interest and Sufficiently Representative
The Form F17 did not address the sufficient interest criteria at paragraph 17 of the Statement of Principles as to whether employees have a sufficient interest in the terms of an enterprise agreement as required by s. 188(2)(a) of the Act, and whether the employees are sufficiently representative as required by s. 188(2)(b).
The Employer submitted the 21 employees who exercised their right to vote on agreement represented approximately 80% of the workforce that will be covered by the Agreement. Additionally, those employees were, as far as possibly foreseeable, representative of the workforce as it is expected to remain over the life of the Agreement. The Employer further submitted that all employees covered by the Agreement were able to vote, and the voting cohort represents the full spectrum of roles covered by the Agreement. Based on these submissions I am satisfied that the employees requested to approve the Agreement by voting for it have a sufficient interest in the terms of the Agreement and are sufficiently representative.
Definition of a Shiftworker for the Purposes of the National Employment Standards (NES)
The Agreement appears to be silent on the definition of a shiftworker. This may be inconsistent with s. 196 of the Act. The Employer provided undertakings which provide a definition of a shiftworker for the purposes of the NES.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:
Clause 6.4 of the Agreement provides an annualised salary clause which appears to attempt to provide for reconciliation, however, as it does not state the specific amount employees will receive above the Award rates, it does not appear to be in accordance with the decision in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery.1 As such, it does not appear to provide enough protections for employees under an annualised salary arrangement.
Clause 6.4 does not prevent casual employees from entering annualised salary arrangements. However, pursuant to the Decision in Loaded Rates in Agreements,2 casual employees on loaded rates may struggle to pass the BOOT.3 This is because they may be required to only work during times that attract penalty rates under the Award, potentially leaving them worse off overall compared to Award conditions.
The Agreement is silent in relation to how non-continuous shiftworkers will be paid. This is inconsistent with Clause 33.2(e)(ii) of the Award which provides that employees who work a shift that does not continue for at least 5 successive afternoon or night shifts must be paid at 150% of the ordinary rate for the first 3 hours and 200% thereafter.
Clause 8.1 of the Agreement allows the Employer and employees to alter the start and finish times. It is unclear whether this is referring to the span of hours. If so, this could potentially lead to an agreement between the parties that the span will be as large as 12am – 11:59pm. This is in contrast with clause 17.2(d) of the Award which permits the spread of hours to be moved up to one hour forward or one hour back only by agreement.
The Agreement is silent about how overtime worked on Sundays will be paid, therefore, it appears employees will receive 150% for the first 3 hours and 200% thereafter. This is inconsistent with clause 32.6 of the Award which provides that overtime worked on Sundays will be paid a penalty of 200% and a minimum engagement period of 3 hours. This may be an issue for employees who regularly work overtime on Sundays.
Clause 8.5 of the Agreement provides that all employees will receive overtime at a rate of 150% for the first 3 hours and 200% thereafter. This is inconsistent with clause 32.4 of the Award which provides that continuous shiftworkers will receive all overtime at 200%. This may be an issue for continuous shiftworkers who regularly work overtime.
Clause 6.2 provides, “A junior, apprentice or trainee appointed by the Employer as such will receive a percentage of the Hourly Rate for each Ordinary Hour worked equivalent to the proportion of the ‘minimum weekly rate’ which the junior, apprentice or trainee is entitled to under the Award.” It is unclear if the intention of this clause is to pay juniors, apprentices and trainees pursuant to the Award, or if the intention is to pay these employees a percentage equal to the Award but using the rates under the Agreement.
Section 190 Undertakings
The employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached to the Agreement as Schedule 4. 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.
Flexibility Term
Clause 4.8 of the Agreement permits a flexibility term to be terminated by giving at least 28 days written notice, rather than not more than 28 days as required by s.203(6). As the flexibility term does not meet the requirements of the Act, the model flexibility term will be taken to be a term of the Agreement pursuant to s.202(4) and is attached to the Agreement as Schedule 5.
Section 186, 187, 188 and 190
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.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2024. The nominal expiry date of the Agreement is 31 October 2028.
DEPUTY PRESIDENT
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