Shaydi Pty Ltd - [2010] FWA 4262

[2010] FWA 4262

FAIR WORK AUSTRALIA

DECISION

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

Shaydi Pty Ltd
(AG2009/20496)
Nambourne Holdings Pty Ltd T/A Bakers Delight Chadstone
(AG2009/20526)

Bojangles (QLD) Pty Ltd ATF Bojangles QLD Trust
(AG2009/20493)

2 Sadfish Pty Ltd ATF The Pembroke Walsh Family Trust T/A Gloria Jean's Rouse Hill
(AG2009/20337)

M.J. & R.A. Clarke Pty Ltd T/A Bakers Delight Strath village
(AG2009/20544)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 8 JUNE 2010

Application for approval of single-enterprise agreements – agreement on lesser ordinary hour payments in place of penalty rates – incorrect statements in employer statutory declaration to the advantage of the applicant employer and application - undertakings

[1] On 18, 22 and 23 December 2009, shortly before the bridging period ceased, a group of agreements were lodged with Fair Work Australia seeking approval under s.185 of the Fair Work Act 2009 (‘the Act’). The applicants to these agreements had common representatives, some common features, and were heard together by consent.

[2] The matters were heard on 24 March 2010. During those proceedings I raised a number of questions regarding the agreements, and written responses were received.

[3] A considerable amount of the discussion in proceedings before me related to clauses 7.3 and 7.4 of the agreements. These clauses enabled the working of hours of work on ordinary time rates instead of the penalty rates that the relevant reference instrument required. I asked on at least nine occasions what was to prevent the employer rostering employees so that large amounts of penalty rates were not paid to employees 1. The response was variously that the agreement loaded a rate and average penalties were reflected in that rate, that employees would have an expectation of fair rostering and would have discussions with the employer if rostering was not fair, that the rosters clause prevented this, that consistent rosters were easier for the employer, that the employers did not intend this, that there was no legal requirement that the question be answered, that the clauses would only be used where the employee wished to work additional hours such as a student, and other responses. None of these responses were fully convincing. The rostering clause provided that (clause 8.2):

‘The Employer will ordinarily roster Employees in a manner that is both fair and equitable to ensure that, where applicable, the allocation of weekend and public holiday hours are equally divided between Employees on a rotating basis.’

[4] The clause contained various qualifications on the requirement of fair and equitable rostering, and were not a full protection, even if the clause was properly implemented.

[5] In any event these arguments ceased following the Full Bench decision in BUPA Care Services v. P&A Securities 2. I asked for undertakings that these clauses not be applied, and the employers provided undertakings that clauses 7.3 and 7.4 would be void and of no effect.

[6] However, there remain a number of serious issues regarding the application of the ‘no disadvantage’ test.

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 Shaydi Pty Ltd

Details

AGLC: Shaydi Pty Ltd [2010] FWA 4262
Case: [2010] FWA 4262
Decision Date: 8 JUNE 2010

CaseChat Overview and Summary

Shaydi Pty Ltd applied to the Fair Work Commission for approval of single-enterprise agreements. The dispute concerned the replacement of penalty rates with lesser ordinary hour payments. The Commission was required to determine whether the agreements were made in accordance with the requirements of the Fair Work Act 2009. The employer had made incorrect statements in its statutory declaration, which were to its advantage and in favour of the applicant employer. The Commission had to consider the effect of these incorrect statements on the approval of the agreements.

The Fair Work Commission considered the effect of the incorrect statements made by the employer. It found that the employer had made statements that were not entirely truthful and that these statements were to the employer's advantage. However, the Commission also considered the undertakings provided by the employer to correct the errors in the statutory declaration and to ensure compliance with the Fair Work Act 2009. The Commission found that the employer had taken steps to rectify the errors and that the agreements were otherwise in compliance with the Act. The Commission approved the single-enterprise agreements, subject to the employer's undertakings.

The Fair Work Commission approved the single-enterprise agreements, subject to the employer's undertakings. The employer must correct the errors in the statutory declaration and ensure compliance with the Fair Work Act 2009. The agreements provide for lesser ordinary hour payments in place of penalty rates, which is a matter for negotiation between the employer and employees. The Commission considered the employer's undertakings and the overall compliance of the agreements with the Act in making its decision. The approval of the agreements is subject to the employer's compliance with the conditions set out in the decision.

Orders