Rich River Meat Exports Pty Ltd Employee Collective Agreement 2011

[2011] FWA 2352

[2011] FWA 2352

FAIR WORK AUSTRALIA

DECISION

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

Rich River Meat Exports Pty Ltd Employee Collective Agreement 2011
(AG2011/7514)

COMMISSIONER ROE MELBOURNE, 15 APRIL 2011

Rich River Meat Exports Pty. Ltd. Employee Collective Agreement 2011 - application for approval dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Rich River Meat Exports Pty Ltd Employee Collective Agreement 2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Rich River Meat Exports Pty Ltd (the Applicant). There were no bargaining representatives. The agreement is a single-enterprise agreement.

[2] The Application was lodged on 29 March 2011. I was concerned with a number of aspects of the Agreement and wrote to the Applicant on 30 March 2011. The concerns I advised the Applicant of were as follows:

“1. Process of bargaining.

The F17 Form utilised is not the current version of the Form. Consistent with the current version the Commissioner would appreciate a copy of the notice of representational rights provided to employees and if possible some evidence of the date upon which it was provided to employees. Also the Commissioner would appreciate some further information on:

• the date when employees were provided with a copy of the Agreement,



• the date when employees were advised of the voting date and method,



• what was the voting process and what was the process by which employees were informed of the affect of the Agreement, and



• the date or dates when the voting took place.

2. National Employment Standards and other standards.

The Commissioner is concerned that the disputes settlement clause 8.1 does not clearly apply in respect to any dispute about matters arising under the agreement or in relation to the National Employment Standards. This is a requirement of Section 186(6) of the Agreement.

The Commissioner is concerned that in a number of respects the Agreement is not consistent with the National Employment Standards and this is not consistent with the legislative requirements. The Commissioner is concerned that the Employer failed in the Statutory Declaration (F17 Form) at question 2.13 to acknowledge that there may be some conditions which exclude or are detrimental in whole or in part to the National Employment Standards.

For example:

• The rights of employees to refuse to work unreasonable overtime are not clearly established in the Agreement. There are a number of provisions which appear to make overtime compulsory such as the requirement to work 40 hours in clause 2.8(5).



• The rights of employees to reasonably refuse to work on public holidays are not clearly established in the Agreement. Casuals under the agreement appear to be excluded from the right to have public holidays off.



• The public holidays are not consistent with the NES in that other gazetted holidays are not provided for – e.g. Easter Saturday and substituted days gazetted.



• Redundancy payments are not consistent with the minimum NES requirements and for an employee with more than 4 years service the payments under the Agreement are significantly less than the NES minimum.



• The provisions for cashing out of annual leave are not consistent with the legislation in that there is no requirement in the agreement for each request to be separate and in writing and for the employee to retain a minimum of 4 weeks leave.



• There does not appear to be a provision to exempt other forms of leave such as sick leave from periods of paid annual leave.



• There does not appear to be any provision for an additional weeks leave for “seven day” shift workers.



• There does not appear to be any provision for carers leave.



• Casuals appear to be excluded from all leave whereas there are certain types of unpaid leave under the NES to which casuals have an entitlement.



• The accumulation of personal leave appears to be capped at 80 hours which is inconsistent with the NES.



• It is possible that regular and long term Casuals in some cases are not excluded from long service leave under the NES but they are excluded under the Agreement. This would require some further examination.



• The conditions for compassionate leave are much more restrictive than under the NES. Under the NES leave can be taken for serious illness not just death and is not restricted to the time of the funeral. The persons eligible are also wider in that immediate family or household clearly includes same sex partners and their siblings.



• Community service leave which is provided for in the NES is not provided for in the agreement.

The termination provisions in Clause 2.4 may include unlawful terms in that they exclude the operation of unfair dismissal provisions of the Act or modify them in a manner detrimental to employees. The provisions of the Agreement could in some cases exclude employees from protection when they would otherwise have protection under the Act. For example, dismissal because an employee on a single occasion left work without notifying his supervisor might in some circumstances not be found to be abandonment of employment justifying dismissal.

The provisions concerning deductions from pay do not appear to be consistent with the stand down provisions of the legislation (Section 524). In particular stand down because of industrial action cannot include employer action and stand down due to matters such as disruption to production due to AQIS inspection and shortage of animals is not allowable where the employer might be reasonably be held responsible.

The provision concerning consultation about change (Clause 2.7) does not meet the standards of the model consultation clause.

3. Other Better Off Overall issues.

On the F17 Form the employer has made a statutory declaration that there are no matters in the Agreement which are less beneficial than the Award. The Commissioner has not had time to make a comprehensive analysis however on an initial examination it appears that there are a number of matters where the Agreement could be regarded as detrimental when compared to the Award. These matters include:

• The casual loading of 21% is inferior to the Award. Under transitional arrangements by 2014 the rate will be 25% not the 21% provided for under the Agreement.



• The hours can be averaged under the Agreement over 52 weeks whereas 28 days is the maximum under the Award.



• The Agreement does not make clear that casuals are entitled to shift loadings in addition to the casual loading.



• The 30% loading for continuous night shift work is not included in the Agreement but the Agreement does not preclude such a working arrangement.



• Casuals are excluded from penalty payments on public holidays to which they are entitled under the Award.



• The provisions for meal and rest breaks are detrimental to employees when compared to the Award in that in the Agreement all breaks are unpaid and the length and frequency of breaks is less. There is no provision for the payment of overtime when meal breaks are delayed.



• Notice of change of start and finish times is one day under the Agreement and 36 hours under the Award.



• There is no minimum number of hours for Sunday work as required under the Award.



• The Agreement does not appear to provide for a minimum daily engagement period for Casuals which is 4 hours in the Award.



• The Agreement does not provide for overtime meal allowance, cold temperature allowance, first aid allowance or leading hand allowance as provided for under the Award.  Clothing allowance is not provided but since laundered outer clothing is provided this is not an issue of concern.



• The Agreement does not contain details of the incentive payment system as required under the Award.



• The hourly rate for a labourer under the Agreement appears to be less than the award minimum rate for a labourer if the 10% daily hire allowance is included in the award minimum rates.

There are a number of provisions in the Agreement which may be superior to the Award. However, these provisions are not sufficient to overcome the disadvantages identified.”

[3] The Applicant responded on 11 April 2011 and indicated a willingness to address through the provision of appropriate undertakings the concerns raised in respect to the content of the Agreement. In some cases the Applicant advised that the condition was not relevant to the operation, for example no 7 day shift work and no daily hire. The concerns about these matters could be clarified by an undertaking that such conditions would not be introduced during the life of the Agreement. The Applicant also provided information concerning the approval process.

[4] The Applicant in the response dated 11 April 2011 (which was received by Fair Work Australia on 13 April 2011) said that he attached “a copy of the notice of representational rights that was posted on their notice board. This was done on 23 February 2011.” There was no copy of the notice attached to the correspondence. The Applicant then confirmed in the correspondence that “the agreement was passed on 16 March 2011 by a show of hands”.

[5] On 14 April 2011 I advised the Applicant that:

“The correspondence confirms that the notice of representational rights was provided on 23 February 2011 and that voting on the proposed agreement occurred on 16 March 2011. Section 181(2) of the Fair Work Act provides that “the request must not be made until at least 21 days after the day on which the last notice ...is given”. The request refers to a request for employees to approve the agreement by voting for it. It is an established principle that the counting of the 21 days cannot include the last day on which the notice was given as the provision is about the number of days after that day. It is also an established principle that there must be 21 full days before the voting commences. This means that the voting could not occur until March 17 2011. If voting was held on March 16 then this was between 20 and 21 days after the day on which the last notice was given and is not 21 full days. The legislation does not provide the Commissioner with any discretion at all to vary this requirement for this 21 day period.”

[6] I provided the Applicant with the opportunity to make further submissions prior to issuing this Decision.

[7] As there was not 21 days after the day on which the last notice of representational rights was given prior to the commencement of voting on the Agreement I cannot approve the Agreement. The Application for approval of the Agreement is dismissed.

COMMISSIONER

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