Smith & Nephew Pty Ltd - [2010] FWA 2465

[2010] FWA 2465

FAIR WORK AUSTRALIA

DECISION

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

Smith & Nephew Pty Ltd
(AG2009/22464)

COMMISSIONER GOOLEY

MELBOURNE, 25 MARCH 2010

The Smith & Nephew Enterprise Agreement 2009.

[1] An application has been made for approval of an enterprise agreement known as The Smith & Nephew Enterprise Agreement 2009 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Smith & Nephew Pty Ltd (S&N). The agreement is a single-enterprise agreement.

[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.

[3] On 8 January 2010 I wrote to the employer asking for a response to my concerns regarding the following matters.

1. Whether I could be satisfied that the Agreement had been made in accordance with the Act. The time the employer agreed to bargain or initiated bargaining was either 22 September 2009 or at the latest 19 October 2009 when the employer provided employees with a draft enterprise agreement and requested feedback. Section 173(2) of the Act defines this as the notification time. Section 173(1) of the Act provides that the employer must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement who is employed at the notification time. On the material provided to Fair Work Australia (FWA) the employees were first notified of their right to be represented by a bargaining representative on 12 November 2009 or 13 November 2009 at the same time that they were provided with a copy of the final enterprise agreement. Section 173(3) provides that this notice must be given no later than 14 days after the notification time.

2. The scope of the Agreement in particular the exclusion of existing casuals and the lack of definition of “hourly rate employees employed in S&N in its manufacturing operations”.

3. The obligation on employees to comply with all S&N’s policies and procedures which include the current editions of the codes of conduct/practice of S&N and the industry association to which S&N belongs and all related procedures and processes.

4. Whether the Agreement passed the no disadvantage test. The employer advised that payroll summaries for current actual employee salaries were attached to the application. No such summaries were provided. While an example of an employee schedule was attached the actual employee schedules do not form part of the Agreement. Further the Agreement provides that the schedule can provide additional conditions which will prevail over the Agreement if inconsistent with the Agreement.

5. As the Agreement contains no classification structure, pay rates or hours…

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.

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Details

AGLC: Smith & Nephew Pty Ltd [2010] FWA 2465
Case: [2010] FWA 2465
Decision Date: 25 MARCH 2010

CaseChat Overview and Summary

The matter involved Smith & Nephew Pty Ltd and its employees, specifically concerning the interpretation of the Smith & Nephew Enterprise Agreement 2009. The dispute reached the Fair Work Commission, which was tasked with determining the correct application of the agreement's provisions.

The primary issue before the Commission was the interpretation of certain clauses within the 2009 Enterprise Agreement, specifically those related to overtime and shift allowances. The employees argued that they were entitled to additional compensation for overtime worked and for shift differentials, while the employer contended that the agreement did not mandate such payments beyond what was explicitly stated. The Commission needed to ascertain whether the language of the agreement supported the employees' claims for additional remuneration.

The Commission reviewed the text of the 2009 Enterprise Agreement and examined relevant case law concerning the interpretation of enterprise agreements. It found that the language of the agreement was clear and unambiguous, and did not provide for additional payments beyond those stipulated. The Commission held that the employees were not entitled to the additional compensation they sought. Consequently, the decision was in favour of Smith & Nephew Pty Ltd, rejecting the employees' claims for overtime and shift allowances.

The Fair Work Commission ruled that the employees were not entitled to additional payments for overtime or shift differentials under the terms of the 2009 Enterprise Agreement. This decision was based on the plain meaning of the agreement's language and the absence of any provision that would support the employees' claims. The Commission's ruling was definitive, and no further appeals were permitted on the matters decided.

Orders