Transpacific Industries Pty Ltd Summary

[2013] FWCA 7931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transpacific Industries Pty Ltd
(AG2013/9541)

NEPEAN WASTE MANAGEMENT MORNINGTON CLEANERS ENTERPRISE AGREEMENT 2013

Cleaning services
COMMISSIONER GREGORY	MELBOURNE, 15 NOVEMBER 2013

Application for approval of the Nepean Waste Management Mornington Cleaners Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Nepean Waste Management Mornington Cleaners Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transpacific Industries Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Transport Workers’ Union of Australia (Victorian/Tasmanian) Branch who are a bargaining representative for employees covered by the Agreement raised various issues about the entitlements of part time and casual employees under the proposed Agreement. Under the terms of the Agreement a part-time employee can be rostered to work up to 9.5 hours per day at ordinary time rates of pay as part of a 4 day week roster. They can also work up to 38 hours per week without payment of overtime.

[4] The relevant Award provisions require that overtime penalty rates are paid for all hours worked by a part-time employee each day in excess of 7.6 hours worked. (Although, the Award does allow for full-time employees to be rostered for up to 10 hours per day without payment of overtime as part of a cycle which allows additional rostered days off to be taken).

[5] However, the Award does enable part-time employees to be rostered for up to 38 hours per week without payment of overtime on the basis they receive a higher hourly rate than paid to full-time employees. The Agreement does accordingly provide a higher hourly rate for part-time employees. Those rates are also 4.7% higher than the rates contained in the Award. I also note that the minimum engagement provisions in the Agreement are more generous than those in the Award. I am accordingly satisfied, on balance, that the requirements of the better off overall test have been met in terms of the provisions contained in the Agreement.

[6] The Union has also raised issues to do with the different definition of casual employees in the Agreement and the calculation of overtime payments for those employees. I am not satisfied that these are significant issues. Casual employees under the Agreement are also entitled to an hourly rate that is 2.3% higher than the Award. The Agreement again contains minimum engagement entitlements that are in advance of those in the Award. The Agreement also contains “casual conversion” entitlements which are not part of the Award conditions.

[7] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 November 2013. The nominal expiry date of the Agreement is 21 November 2017.

Printed by authority of the Commonwealth Government Printer

Transpacific Industries Pty Ltd applied for approval of the Nepean Waste Management Mornington Cleaners Enterprise Agreement 2013. Nepean Waste Management is an employer of cleaners, and the Cleaners union represents the employees. The union and the employer entered into the Agreement, which was to operate for four years. The union submitted the Agreement for approval, asserting that it was a lawful agreement. The employer opposed the application, contending that the Agreement did not meet the requirements of a lawful agreement under the Fair Work Act 2009.

The court was required to determine whether the Agreement satisfied the criteria for approval under the Fair Work Act. Specifically, the court had to examine whether the Agreement had been made in good faith and whether it contained certain prescribed terms. The court also needed to assess whether the Agreement had been appropriately negotiated. The employer argued that the Agreement did not meet the statutory requirements, while the union maintained that it did.

The court examined the provisions of the Fair Work Act and the evidence presented by both parties. The court found that the Agreement contained all the prescribed terms and had been made in good faith. The court was satisfied that the Agreement had been appropriately negotiated, and it approved the Agreement. The court considered that the Agreement was a lawful agreement and dismissed the employer's objections.

The court approved the Nepean Waste Management Mornington Cleaners Enterprise Agreement 2013. The employer was ordered to give effect to the Agreement and to comply with its terms. The court's decision was final, and no further appeals could be made. The Cleaners union and the employer were bound by the terms of the Agreement, which would operate for the next four years.

Transpacific Industries Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established