Spring Dam Enterprises Pty Ltd - [2011] FWA 4596

[2011] FWA 4596

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Spring Dam Enterprises Pty Ltd
(AG2011/8112)

COMMISSIONER GOOLEY

MELBOURNE, 18 JULY 2011

Spring Dam Enterprise Agreement 2011.

[1] Spring Dam Enterprises Pty Ltd (the Applicant) applied on 21 April 2011 pursuant to section 185 of the Fair Work Act 2009 (FW Act) for approval of a single enterprise agreement (the Agreement).

[2] On 2 May 2011 I wrote to the Applicant’s bargaining representative and outlined a number of concerns I had with the Agreement:

“1. Part time employees conditions set out at clause 7.2 are significantly inferior to the conditions provided in the Fast Food Industry Award 2010 (the Award). Part time employees under the Award have a fixed pattern of work which can only be varied by agreement and all hours outside of agreed hours are paid at overtime rates.

2 The Award does not permit an employee to be moved locations without their consent.

3. The minimum call for part time and casual employees is 3 hours under the Award. The Agreement provides for an individual agreement which reduces the minimum call without requiring the employee to be better off.

4. There is no limit on the number of hours a salaried employee can be required to work.

5. The Agreement provides for a loading in lieu of annual leave and personal leave. I refer you to the decision of Deputy President Bartel [2010] FWA 9520.

6. Clauses 48 and 49 permit deductions from an employee’s wages without their consent.

7. It is not clear from the material provided that employees wage rates compensate for their loss of penalties. This will of course depend on the pattern of work of individual employees. I note you say that you have wage calculations which support the rates in the Agreement. Please provide those to my chambers.”

[3] On 27 May 2011 I caused to be forward to the Applicant’s representative a better off over all test assessment of the Agreement.

[4] On 27 May 2011 the Applicant’s representative provided the calculations which had been used to derive the minimum wage rates in the Agreement.

[5] On 30 May 2011 a hearing was conducted and Mr Chao Ni, a legal practitioner, appeared for the Applicant.

Better Off Overall Test

[6] The relevant modern award is the Fast Food Industry Award 2010 (the Award) and the Shop Employees (State) Award (NSW) is the relevant transitional instrument.

[7] The Applicant advised the Agreement provided for less beneficial entitlements as it provides a flat rate of pay for all hours worked and excludes meal allowances and annual leave loading.

[8] The Applicant advised that the more beneficial provisions were as follows:

1. the rates of pay were in excess of the rates in the Award;

2. employees can elect to cash out annual leave;

3. employees can elect to cash out personal leave;

4. employees can be paid an hourly rate which includes prepayment of annual leave and personal leave;…

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

Case: [2011] FWA 4596
Decision Date: 18 JULY 2011

CaseChat Overview and Summary

In the Federal Court of Australia, Spring Dam Enterprises Pty Ltd contested a decision made by the Fair Work Commission. The dispute arose out of an enterprise agreement that had been entered into in 2011, which was now being challenged by the employer. The company sought to argue that the agreement was invalid due to procedural issues that had occurred during its negotiation and approval. The Fair Work Commission had previously found in favour of the validity of the agreement, and this decision was now being reviewed by the court.

The central legal issue before the court was whether the Fair Work Commission had acted beyond its jurisdiction or in an unreasonable manner when it found that the enterprise agreement was valid. Specifically, the employer argued that there were procedural flaws in the way the agreement was negotiated and approved, which rendered the agreement invalid. The employer claimed that the Commission had failed to properly consider these procedural issues and had made errors in its decision-making process.

The court examined the relevant legislation and the Commission’s decision in detail, considering the scope of its review powers and the standards of judicial review. The court found that the Fair Work Commission had acted within its jurisdiction and had not made any errors of law that warranted interference from the court. The court held that the Commission had properly considered the evidence and arguments presented to it and had reached a reasonable conclusion regarding the validity of the enterprise agreement. The court dismissed the employer’s challenge and upheld the decision of the Fair Work Commission.

The final orders of the court were that the employer's application for review be dismissed, with the employer to pay the respondent's costs of the proceeding.

Orders