The Australian Workers' Union v Inghams Enterprises Pty Ltd

[2011] FWA 2400

[2011] FWA 2400

FAIR WORK AUSTRALIA

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

The Australian Workers' Union
v
Inghams Enterprises Pty Ltd
(C2011/3574)

Agricultural industry
COMMISSIONER LEWIN	MELBOURNE, 19 APRIL 2011

Dispute concerning payment of overtime rates.

[1] This matter concerns a dispute over the application of the terms of the Inghams Enterprises - Victorian Farms Agreement 2010 (“the Agreement”). The Agreement prescribes a dispute resolution process in the following form:

“6.2 Dispute Resolution Process

(1) Resolving a dispute at the workplace level

(a) Subject to the provisions of the Fair Work Act 2009 ("the Act") the following procedure shall apply to the avoidance of industrial disputes.

(b) The parties to a dispute must genuinely attempt to resolve the dispute at the workplace level. This may involve the affected employee first discussing the matter in dispute with their supervisor, then with more senior management.

(2) Where the matter cannot be resolved at the workplace level

(a) If a matter in dispute cannot be resolved at the workplace level, either party may refer the dispute to FWA in an attempt to resolve the matter. FWA will attempt to resolve the dispute as it considers appropriate including mediation, conciliation, expressing an opinion or making a recommendation.

(b) If both parties consent to arbitration then it is agreed that FW A shall have the power to do all such things as are necessary for the just resolution or determination of the matter in dispute in accordance with the provisions of the Act. This includes the exercising of procedural powers in relations to direction, hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

(c) Notwithstanding any other provision of this clause FWA may, subject to the provisions of the Act, settle disputes:

(i) about matters arising under the agreement; and

(ii) in relation to the National Employment Standards.

(3) Conduct during a dispute

(a) An employee who is a party to a dispute must, while the dispute is being resolved:

(i) continue to work in accordance with their contract of employment, unless the employee has a reasonable concern about an imminent risk to their health or safety; and

(ii) comply with any reasonable and lawful direction given by their employer to perform other available work, either at the same workplace or at another workplace.

(b) In directing an employee to perform other available work, the employer must have regard to:

(i) the provisions (if any) of the law of the Commonwealth or of a State or Territory dealing with occupational health and safety that apply to that employee or that other work; and

(ii) whether that work is appropriate for the employee to perform.

(4) An employee who is a party to the dispute may appoint a representative for the purposes of this clause at any stage.”

[2] The dispute could not be resolved at the workplace level and has been to Fair Work Australia under clause 6.2(1)(a).

[3] The nature of the dispute was extensively explained at a conference on 31 March 2011. The matter at issue concerns the application of various terms of the Agreement governing the hours of work and rates of payment applicable to work performed at different times and in different circumstances.

[4] In particular, the dispute concerns the performance of shift work as broken shifts in exceptional circumstances. Due to extraordinarily high temperatures it was necessary to perform a number of broken shifts not usually worked, for a particular purpose which arises infrequently. The hours of the broken shifts were performed in the early morning and at night.

[5] The question which arose at the conference concerned the correct payment applicable under the terms of the Agreement.

[6] After hearing the parties I made a recommendation which reflected my view of the proper application of the terms of the Agreement to the relevant factual circumstances. I asked the parties to advise me of the acceptance or otherwise of the recommendation.

[7] I am advised that the parties accept the recommendation and ask that it be recorded in writing. What follows is the formal record of the recommendation for the purposes of the settlement of the dispute in accordance with the process prescribed by clause 6.2(2)(a) of the Agreement.

Recommendation

[8] Where an employee is required to perform broken shifts of work, in bona fide exceptional circumstances, within the meaning of the terms of the Agreement, the payment for the ordinary hours of work shall be a shift allowance of 15% above the ordinary rate for all of the ordinary hours, as prescribed by the Agreement, comprising the broken shift.

[9] For hours in excess of the ordinary number of hours worked on such a broken shift the overtime rates prescribed by the Agreement shall be paid.

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