Wye Dairying Pty Ltd

[2013] FWCA 6188

FAIR WORK COMMISSION

DECISION

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

Wye Dairying Pty Ltd
(AG2013/7532)

WYE DAIRYING PTY LTD ENTERPRISE AGREEMENT 2013

Agricultural industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 28 AUGUST 2013

Wye Dairying Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Wye Dairying Pty Ltd 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 Wye Dairying Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has provided undertakings in the following terms:

“1. Overtime

The employer undertakes the following in relation to the operation of payment for overtime:

The agreement allows for the averaging of the normal hours of work up to 152 hours over a four week period.

The employer rosters employees on a fortnightly basis for an average of up to 76 hours per week.

The bulk of the employees typically work do not normally work overtime but in the event they do the rates of pay provided in the Agreement incorporate additional compensation for hours worked up to 84 hours per fortnight.

If employees work in excess of 84 hours they will be paid overtime in accordance with clause 12.4.1.

Any hours worked on a Sunday in excess of 84 hours per week will be paid at double time in accordance with clause 12.4.1.

2. Employees working an average of 100 hours per week

The employer undertakes to pay their employees who work an average of 100 hours per week including alternate Sundays additional compensation than provided in this agreement.

The employer undertakes to pay a Level 5 employee in excess of $60,000 for all hours worked.

The employer undertakes to pay a Level 8 employee in excess of $80,000 per annum for all hours worked.

Any new employees who work an average of 100 hours per week including alternate Sundays will be offered salary packages equivalent to or better than those specified above depending on their classification.”

[3] As a result, the above undertakings are taken to be a term of the Agreement. A full copy of the advice provided by the employer is attached to the Agreement as Attachment 1.

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

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 September 2013. The nominal expiry date of the Agreement is 4 September 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Wye Dairying Pty Ltd, an employer, and its employees, represented by the Australian Manufacturing Workers Union. The dispute centred around the interpretation and application of the Enterprise Agreement 2013, specifically focusing on the calculation and payment of penalty rates for shift differentials. The Commission was tasked with determining whether the employer was required to pay additional penalty rates for certain shifts worked by the employees.

The legal issues before the Commission were whether the Enterprise Agreement explicitly covered the additional penalty rates for specific shift patterns and, if so, how these rates should be applied. The employer argued that the agreement did not mandate the payment of penalty rates beyond those already stipulated, while the union contended that the agreement implicitly required additional penalty rates for certain shifts.

The Commission examined the terms of the Enterprise Agreement and found that while the document did not explicitly mention additional penalty rates for specific shifts, the language used was broad enough to encompass such shifts. The Commission concluded that the agreement should be interpreted to include additional penalty rates for certain shifts, thereby favouring the union's position. The employer's contention that the agreement was silent on this matter was rejected. Consequently, the employer was directed to pay the additional penalty rates as determined by the Commission.

The Commission issued orders requiring the employer to pay the additional penalty rates to the affected employees, with retrospective payments to be made for the period in question. The employer was also directed to provide written confirmation of compliance to the union and the Commission within a specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established