Legal Research
Cases
Top End Consulting Pty Ltd

Top End Consulting Pty Ltd

Case [2010] FWA 6442 24 August 2010

Enterprise Agreement

Approval Process

Employment & Labour Law

No judgment structure available for this case.

Type to search within this case.

[2010] FWA 6442

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Top End Consulting Pty Ltd
(AG2010/11622)

DEPUTY PRESIDENT BARTEL

ADELAIDE, 24 AUGUST 2010

Application for approval of the Top End Consulting Enterprise Agreement 2010

[1] An application for approval of an enterprise agreement known as the Top End Consulting Enterprise Agreement 2010 (the Agreement) has been made by Top End Consulting Pty Ltd (the employer or Top End Consulting). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the FW Act) and is a single enterprise agreement.

[2] The Agreement is binding on the employer and its employees “… who are engaged to provide labour to one of the employer’s clients as designated by the employer from time to time.” 1 As is apparent, the employer is a labour hire company. It operates in the Northern Territory and in Western Australia, providing labour to a number of workplaces in industries which the employer describes as seasonal industries. The reference instruments that apply to the employees bound by the Agreement are identified in the Form F17 Employer Declaration as set out below.

Hospitality Industry (General) Award 2010 [MA000009]

Storage Services and Wholesale Award 2010 [MA000084]

Road Transport and Distribution Award 2010 [MA000038]

Silviculture Award 2010 [MA000040]

Horticulture Award 2010 [MA000028]

[3] The Agreement was lodged on 6 July 2010 and I forwarded a statement to the employer dated 19 July 2010 outlining my Preliminary Findings. In that statement I indicated that I had concerns that the Agreement did not pass the Better Off Overall Test, and in particular that:

The span of hours for casual and permanent employees of 6.00am to 6.00pm Monday to Friday is broader than provided under the Silviculture Award 2010 and the Storage Services and Wholesale Award 2010;

The piece work provisions of the Agreement were less beneficial than the piecework provisions of the Silviculture Award; and

The additional voluntary hours provisions of the Agreement, which enable employees to volunteer to work outside ordinary hours Monday to Friday, on weekends and public holidays at ordinary time rates, reflect provisions which are inferior to the reference instruments.

[4] I also indicated that the details of the terms and conditions in the reference instrument(s) that are less beneficial to employees than the terms of the Agreement, and the identification of the employees affected, was required in order to make an assessment as to whether the employees are better off overall.

[5] The relevant voluntary hours provisions in the Agreement are as follows:

“17. WEEKEND WORK

17.1 Any ordinary hours worked on a Saturday will be paid for at a rate of time and a half.

17.2 Any ordinary hours worked on a Sunday will be paid at a rate of double time.

17.3 If an Employee makes a request to work ordinary hours on a Saturday and/or Sunday in accordance with clauses 10.3 or 11.3 then they will be paid for such hours worked at the rates provided…

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.

Continue reading Top End Consulting Pty Ltd

Details

AGLC: Top End Consulting Pty Ltd [2010] FWA 6442
Case: [2010] FWA 6442
Decision Date: 24 AUGUST 2010

CaseChat Overview and Summary

Top End Consulting Pty Ltd recently brought an application for the approval of its 2010 Enterprise Agreement before the Fair Work Commission. The application arose from a dispute between the company and the union representing its employees, the Construction, Forestry, Mining and Energy Union. The primary issue before the commission was whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in terms of the process by which it was negotiated and the fairness of its provisions.

The legal issues the commission needed to address included whether the agreement had been genuinely bargained between the parties, whether it contained the prescribed minimum terms and conditions, and whether it complied with the "better off overall test". This test required the commission to be satisfied that the proposed agreement was at least as good as the applicable award or other relevant instrument in terms of the employees' overall pay and conditions.

In considering these issues, the commission examined the evidence provided by both parties, including the negotiation process and the content of the agreement. It found that the agreement had been genuinely negotiated and contained the prescribed minimum terms and conditions. The commission was also satisfied that the agreement met the better off overall test, as it provided employees with improved conditions and pay compared to their previous arrangements. Consequently, the commission approved the agreement, finding it to be in compliance with the relevant statutory requirements.

The final orders of the commission were that the Top End Consulting Enterprise Agreement 2010 be approved and registered. This decision effectively sets the terms and conditions of employment for the employees covered by the agreement, providing a legally binding framework for their employment relationship with the company.

Orders