Smithfield Feedlot Pty Ltd
[2010] FWA 9317
•2 DECEMBER 2010
[2010] FWA 9317 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/23837)
Agricultural industry | |
COMMISSIONER ASBURY | BRISBANE, 2 DECEMBER 2010 |
Smithfield Feedlot Enterprise Agreement 2009 - concerns in relation to whether Agreement passes no disadvantage test communicated to Employer - opportunity to provide further submissions/undertakings declined - finding that Agreement does not meet the requirements for approval - application refused.
[1] This is an application under s.185 of the Fair Work Act 2009 (the Act) for approval of the Smithfield Feedlot Enterprise Agreement 2009.
[2] On 12 November 2010 the following email was sent to the Applicant’s representative, McCullough Robertson Lawyers:
“I refer to the application for approval of the Smithfield Feedlot Enterprise Agreement 2009 (the Agreement). Commissioner Asbury has a number of questions and concerns about the Agreement in relation to whether it passes the no-disadvantage test when compared with the relevant reference instrument, the Feedlot Industry Award – State (the Award).
There are no maximum or minimum hours prescribed for part time employees in clause 7.3 of the Agreement. The Award provides at clause 1.5.11 that part time employee means an employee other than a casual, who is engaged to work regular hours each work cycle and whose ordinary daily working hours are worked continuously inclusive or exclusive of meal times according to operational requirements. Clause 4.2.1 of the Award provides that the ordinary hours for part-time employees shall not be less than 8 hours per week and no more than 32 hours per week on not more than 5 days per week. There is also a minimum engagement for part-time employees of four hours.
Clause 7.4 of the Agreement deals with casual employees and does not provide a minimum engagement or payment. Clause 4.3 of the Award provides for a three hour minimum engagement for casual employees.
There is no Award provision disentitling an employee to payment for a public holiday, on the basis set out in 7.13(6) of the Agreement.
The Award provides for employees working on public holidays to be paid for such work at the rate of double time and a-half or one and a-half days wages in addition to the employee’s ordinary rate of pay, or pro rata if there is more or less than one day of work. The Award also contains detailed provisions for employees who do not work Monday to Friday of each week and the entitlements of such employees to be paid for public holidays falling on Saturdays and Sundays.
The Agreement does not contain such provisions. It is also arguable that the payment to employees for work on a statutory holiday does not equate to the rate to which they would be entitled under the Award.
The Agreement does not contain a provision in relation to annual leave loading, in contrast with the Award which provides for a 17.5% loading.
In relation to hours of work provisions in clause 7.16 of the Agreement, there is a provision for voluntary additional hours in clause 7.16(2). The effect of this provision is that hours which would otherwise be payable at overtime rates, are paid at ordinary rates on the basis that the employee volunteers to work such hours. In BUPA Care Services Pty Ltd [2010] FWAFB 2762 a Full Bench of Fair Work Australia held that the fact that an employee may prefer to work certain hours and have volunteered to do so, is not a factor that can be taken into account in assessing whether an agreement passes the no-disadvantage test. In response to the argument that if the employer could not pay ordinary time for work that would otherwise be overtime, that no overtime would be offered, the Full Bench held that the terms of an agreement must be assessed against the terms of a relevant award, and the effect that the terms and conditions may have on the actions of the employer and the employee is not relevant. The Commissioner is concerned that the inclusion of this provision could cause the agreement to fail the no-disadvantage test.
Although the Agreement does provide for a loaded rate for all hours, full time employees will be disadvantaged when they work hours in excess of the average of 90 per fortnight. Similarly, while the Agreement provides that casual employees will not be required to work more than 76 ordinary hours in a fortnight, casual employees are not precluded from being subject to the voluntary additional hours provision, and will be disadvantaged in comparison with the terms of the Award, if they work hours that would otherwise be paid at overtime rates pursuant to the voluntary additional hours provision.
You may elect to respond to this request for further information either in writing, or by attending a hearing for this purpose and making oral submissions. If you elect to respond in writing, the information requested should be provide within seven days by email directed to: [email protected] or by mailing your response to me at Fair Work Australia, PO Box 5713, Brisbane, Queensland, 4001. You may choose to deal with these issues by providing undertakings. Please note that pursuant any undertaking is to be provided in writing and signed by the employer (s.190(5) of the Fair Work Act 2009 and Regulation 7 of the Fair Work Regulations 2009). Undertakings may also be forwarded by email or mail to the addresses set out above.
If you wish to attend a hearing for the purpose making oral submissions, please forward an email advising of your intentions in this regard to the abovementioned email address, and the matter will be listed.”
[3] On 25 November 2010 the following response was received from the Applicant’s representatives, McCullough Robertson Lawyers:
“Thank you for your email.
We are instructed that our client does not wish to provide any further information or undertakings in relation to the matters raised with respect to the Smithfield Feedlot Enterprise Agreement 2009.
We respectfully request that the Commissioner proceed with her decision on the agreement.
We look forward to receiving the Commissioner’s decision in due course.”
[4] For the reasons set out in the email of 12 November 2010 I am of the view that the Agreement in its current form does not pass the no-disadvantage test as required under s.286(2)(d) of the Act, as modified by item 2(1)(a) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the Transitional Act).
[5] There is no material before me upon which I could be satisfied that the Agreement should be approved on the grounds in s.189 of the Act.
[6] I have detailed my concerns in correspondence to the employer’s representative, and provided an opportunity to make further submissions and/or to provide undertakings pursuant to s.190 of the Act. That opportunity has been declined.
[7] I remain of the view that the Agreement does not pass the no-disadvantage test as required by s.186(2)(d) of the Act as modified by Schedule 7 Item 2(1)(a) of the Transitional Act.
[8] In the circumstances, the application for approval of the Agreement is refused. I order accordingly.
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