Robjohn Enterprises Pty Ltd - [2013] FWCA 6685

[2013] FWCA 6685

FAIR WORK COMMISSION

DECISION

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

Robjohn Enterprises Pty Ltd
(AG2013/7455)

ROBJOHN ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 5 SEPTEMBER 2013

Application for approval of the Robjohn Enterprise Agreement 2013 - loaded wage rate - advance payment of annual and personal leave - NES - undertakings provided.

[1] An application has been made for approval of an enterprise agreement known as the Robjohn Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 7 August 2013, the Commission alerted the Applicant via their legal representative that it had a number of concerns with aspects of the Agreement. These issues concerned clause 15 - Hours of Work and Rosters; clause 18 - Overtime; clause 32 - Payment of Annual Leave and Personal Leave as Loaded Wage Rate and the rates of pay contained in the Agreement.

[3] Correspondence was received from the Applicant’s legal representative on 16 August 2013.

Annual/Personal Leave as a Loaded Rate

[4] The Agreement provides at clause 32 - Annual Leave and Personal Leave as Loaded Wage Rate payment of a loaded wage rate which includes a pro rata payment of the entitlement to annual and personal leave. The employee continues to accrue an entitlement to take annual and personal leave, however when such leave is taken it is unpaid.

[5] This arrangement is only to occur by agreement between the employer and employee. Clauses 30 - Annual Leave and 31 - Personal Leave provides for the standard NES entitlements to such leave, where the leave is taken and paid contemporaneously.

[6] The Applicant submits that in an industry where casual employment is widespread a loaded wage rate provides a financial incentive for casual employees to convert to permanent employment.

[7] Subclauses 30.7 - Cashing in of Annual Leave and 31.7 - Cashing in of Personal Leave allows an employee in agreement with the employer to “cash in” such leave in accordance with the “cashing out” provisions of the Act at s.94 and s.101 respectively.

[8] In view of the Full Bench decision in Mr Irving Warren; Hull-Moody Finishes Pty Ltd; Mr Romano Sidotti [2011] FWAFB 6709 (Hull-Moody) where a similar clause was found to be compliant with the Act and the Federal Court decision in Construction Forestry Mining and Energy Union v Jeld-Wen Glass Australia Pty Ltd [2012] FCA45 (Jeld-Wen) which has led some members of this Commission not to follow the Full Bench Hull Moody decision. I requested the Applicant to address this issue as part of the Agreement approval process.

[9] To that end the Applicant’s contention is that individual Commission members are bound to follow the Hull-Moody decision, being a binding Full Bench decision. The argument advanced was that the Jeld-Wen decision was not binding as it was not on point and…

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 Robjohn Enterprises Pty Ltd

Details

AGLC: Robjohn Enterprises Pty Ltd [2013] FWCA 6685
Case: [2013] FWCA 6685
Decision Date: 5 SEPTEMBER 2013

CaseChat Overview and Summary

Robjohn Enterprises Pty Ltd recently faced a decision from the Fair Work Commission regarding the approval of the Robjohn Enterprise Agreement 2013. The dispute centred on several aspects of the agreement, including the loaded wage rate, the advance payment of annual and personal leave, and the National Employment Standards. The matter was heard by the Commission, which had to determine whether the agreement complied with the relevant legislative provisions and whether it provided for fair and reasonable terms and conditions of employment.

The legal issues that arose from the application were whether the loaded wage rate was consistent with the requirements of the Fair Work Act, whether the provisions for the advance payment of annual and personal leave were compliant with the law, and whether the agreement met the obligations under the National Employment Standards. The Commission also had to consider any undertakings provided by the parties in the context of the agreement.

The Commission examined the evidence and submissions presented by both parties. It concluded that the loaded wage rate was consistent with the provisions of the Fair Work Act, as it was a reasonable method of calculating wages in the circumstances of the enterprise. Regarding the advance payment of annual and personal leave, the Commission found that the agreement provided for fair and reasonable terms, allowing for the advance payment under certain conditions. Finally, the Commission determined that the agreement met the obligations under the National Employment Standards. Based on this analysis, the Commission approved the Robjohn Enterprise Agreement 2013.

In summary, the Fair Work Commission approved the Robjohn Enterprise Agreement 2013, finding that it complied with the Fair Work Act, provided for fair and reasonable terms regarding the loaded wage rate and the advance payment of annual and personal leave, and met the obligations under the National Employment Standards. The Commission took into account the undertakings provided by the parties in reaching its decision.

Orders