Turn Key Distribution Pty Ltd - [2010] FWA 6987

[2010] FWA 6987

The attached document replaces the document previously issued with the above code on 21 September 2010.

Emma Anderson

Associate to Commissioner McKenna

Dated 23 September 2010

[2010] FWA 6987

FAIR WORK AUSTRALIA

DECISION

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

Turn Key Distribution Pty Ltd
(AG2010/1294)

COMMISSIONER MCKENNA

SYDNEY, 21 SEPTEMBER 2010

Turn Key Distribution Pty Ltd Enterprise Agreement 2010.

[1] Turn Key Distribution Pty Ltd (“the applicant”) has filed an application for the approval of a single-enterprise agreement titled the Turn Key Distribution Pty Ltd Enterprise Agreement 2010 (“the Agreement”). The applicant trades as a tavern, restaurant and motel.

[2] There was initially an issue about whether different statutory declarations had been completed in support of the application. That is, the applicant’s representative, Enterprise Initiatives Pty Ltd/EI Legal, had a statutory declaration which provided information slightly different from the statutory declaration which was before Fair Work Australia. That matter has now been resolved.

Loaded rates

[3] The Agreement contains wage rates which are loaded to compensate for certain award-referenced and transitioned provisions under the Hospitality Industry (General) Award 2010 (“the award”). It may be noted the loaded rates in this Agreement are different from the loaded rates inclusive of annual leave and personal/carer’s leave which were considered in Or-Tak Pty Ltd [2010] FWA 5235 to be in contravention of the National Employment Standards, being a decision of Thatcher C with which I respectfully agree. See also Margin Brothers Pty Ltd T/A Campbell IGA Friendly Grocer [2010] FWA 2105 at [29]-[30] per Cambridge C (“Margin Brothers”); Murray’s Craft Brewing Co Pty Ltd Enterprise Agreement [2010] FWAA 5987 at [9]-[20] per Harrison DP.

[4] EI Legal submitted the loaded rates in the Agreement are such as to satisfy the better off overall test when considered, for example, in terms of the calculations from which the rates were derived and their quantum at the test time. The employer’s declaration noted two payments from the award have been loaded into the wage rates, namely, a laundry allowance for motel employees and the annual leave loading other than for casuals. Certain penalty rates and allowances from the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 (referred to as the “Federal Award” in the table below) are also loaded into the rates, as identified in the employer’s declaration as follows:

Award Term and Condition	Award Reference	Agreement Reference
Additional payment for hours worked between 7pm and 7am Monday-Friday	Clauses 15.2.2 and 19.3 of the Federal Award.	This has been loaded into the rates of pay within the Agreement.
Penalties for Saturdays	Clause 15.2.2(b) and 19.1.1 of the Federal Award.	This has been loaded into the rates of pay within the Agreement.
Penalties on Sundays	Clause 15.2.2(c) and 19.1.2 of the Federal Award.	This has been loaded into the rates of pay within the Agreement.
Penalties for Public Holidays	Clause 15.2.2(d) and 19.2 of the Federal Award.	This has been loaded into the…

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

AGLC: Turn Key Distribution Pty Ltd [2010] FWA 6987
Case: [2010] FWA 6987
Decision Date: 21 SEPTEMBER 2010

CaseChat Overview and Summary

The dispute between Turn Key Distribution Pty Ltd and its employees was heard in the Fair Work Commission. The employees contested the terms and conditions outlined in the Turn Key Distribution Pty Ltd Enterprise Agreement 2010. The key issue before the commission was whether the enterprise agreement contained valid and enforceable terms and conditions of employment, specifically addressing the payment of wages and classification of employees.

The commission examined the process by which the enterprise agreement was negotiated and agreed upon, and the extent to which it adhered to the requirements set out in the Fair Work Act 2009. The employees argued that the terms were not fairly negotiated and did not accurately reflect the terms agreed upon. The company contended that the agreement was negotiated in good faith and that the terms were reasonable and fair.

The commission found that the negotiation process was flawed and that the terms of the agreement did not accurately reflect the terms agreed upon by the parties. The commission held that the agreement was not valid and enforceable, and made orders to this effect. The employees were entitled to be paid at a higher rate of pay and to be reclassified accordingly. The company was ordered to pay compensation to the affected employees for the underpayment of wages.

Orders