The trustee for the Hill Family Trust T/A Bailey Creek Piggeries

[2010] FWA 10086

[2010] FWA 10086

FAIR WORK AUSTRALIA

DECISION

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

The trustee for the Hill Family Trust T/A Bailey Creek Piggeries
(AG2009/20248)

COMMISSIONER ASBURY BRISBANE, 24 DECEMBER 2010

Bailey Creek Piggeries Collective Agreement 2009.

[1] This is an application for approval of the Bailey Creek Piggeries Collective Agreement 2009, under s. 185 of the Fair Work Act 2009. The application was lodged by the Chamber of Commerce and Industry Queensland (CCIQ).

[2] At a hearing on 12 August 2010, I outlined a number of concerns with the Agreement related to whether the Agreement passed the no-disadvantage test, compared to the reference instruments nominated by the employer for that purpose.

[3] Those issues can be summarised as follows:

• The Agreement contains no minimum hours for part-time employees and provides that such employees can work 38 hours in any week;



• The Agreement contains no minimum payments or periods of engagement for casual employees;



• There are provisions dealing with confidential information and intellectual property rights, which do not pertain to the employment relationship and which expose employees to civil penalties under the Act for breach;



• The Agreement does not contain classification levels or definitions to enable a proper comparison with the terms of the relevant reference instruments;



• There are inclusive hourly rates which take into account an “extension to the hours worked” without any parameters being provided in relation to the circumstances and the quantum of such an extension;



• There is an ability to alter the spread of ordinary hours without limitation, and without additional payment to employees;



• The Agreement provides for time off in lieu of overtime, in circumstances where a number of the relevant reference instruments do not contain such a provision;



• The Agreement provides a right for employers to direct employees to take sick leave in circumstances where the employer has the opinion that the employee is suffering from an illness or injury that precludes the employee from carrying out normal duties;



• The Agreement provides for employers to stand down employees without pay for suspected misconduct;



• There are various provisions whereby the employer can make deductions from the wages of employees without written authority or agreement as to the quantum of the deductions, and in circumstances which are not consistent with the provisions of the Act in relation to reasonable deductions;



• The provisions of the Agreement dealing with transmission of business do not refer to the rights of the employee under s. 122(4) of the Act in the event that there is unfairness;



• The dispute resolution procedure does not deal with disputes arising under the Agreement or in relation to the NES.

[4] A number of these issues have been raised on many occasions in relation to other Agreements lodged by CCIQ, and have been addressed in those cases by way of undertakings. CCIQ on behalf of the employer stated at the hearing of 12 August 2010, that further information would be provided to address these concerns, including a spread sheet in relation to the loaded hourly rates, and that undertakings would be given by the employer.

[5] That information has not been provided and no undertakings have been given. Accordingly, I am unable to be satisfied that the Agreement passes the no-disadvantage test. The application for approval of the Agreement is refused on the basis that it does not pass the no-disadvantage test as required by s. 186(2)(d) of the Act, as modified by Part 2 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

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