Agreement disputes: retrenchment, BOOT, payroll system, more

Cases

Agreement disputes: retrenchment, BOOT, payroll system, more

These short summaries of recent cases cover disputes between employers and employees in the making and implementation of enterprise agreements. Some of the issues include: consultation during retrenchment; the ‘better off overall test’ not being met; competency-based training; the applicability of a bargaining representative; how to send details of the agreement; over-award payments; and more.

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These short summaries of recent cases cover disputes between employers and employees in the making and implementation of enterprise agreements. Some of the issues include: consultation during retrenchment; the ‘better off overall test’ not being met; competency-based training; the applicability of a bargaining representative; how to send details of the agreement; over-award payments; and more.

Retrenchment process — consultation recommended
 
The Fair Work Comission recommended that the parties meet and seek to reach agreement on a framework and set of principles they would use to consult in the future over retrenchment issues.
 
The dispute was about whether Forstaff had consulted employees regarding the retrenchment process. Five retrenched employees lodged unfair dismissal applications. Hostility between the parties meant the opportunity for a different outcome was limited. The Commission declined to determine whether Forstaff had failed to consult and it saw no value in reinstating the retrenched employees. The Commission ordered Forstaff to provide a list of employees who had been retrenched in its employment reduction scheme to the union that has coverage, categorised by classification and start date. The Commission declined to issue orders preventing Forstaff making workplace change without properly consulting with the ALAEA in future.

Australian Licenced Aircraft Engineers Association v Forstaff Avalon P/L t/a Forstaff Aviation [2013] FWC 4639 (24 July 2013)
 

 
Better off overall test not met
 
The Fair Work Commission was not satisfied that an enterprise agreement passed the better off overall test (BOOT) in relation to part-time employees. The agreement provided that part-time employees could be directed to work outside of agreed hours at ordinary time rates. The employer argued that the provisions were consistent with the appropriate modern awards. It was clear that the agreement provisions were inconsistent. The enterprise agreement could be substituted for an individual’s agreement to vary hours of work. The award modernisation request from the Minister made it clear that modern awards should not operate to discourage offers of additional work — a direction to work overtime under the agreement was clearly less beneficial to the employees than an agreement to do so. The employer’s ability to direct employees made agreement by the employees futile.
 
Roseneath Aged Care Centre, NSWNMA & HSU NSW Branch Enterprise Agreement 2012 [2013] FWC 4969 (24 July 2013)


 
Body for health practitioners is national system employer
 
This matter had been the subject of previous litigation: National system employer excluded by state legislation. The Fair Work Commission noted the issue of whether Australian Health Practitioner Regulation Agency (AHPRA) had been excluded from the national system by an endorsement from the relevant federal Minister that had not been dealt with. The matter was remitted to Vice- President Watson who found that, while the AHPRA was initially established under Queensland legislation, its later incorporation by the territories brought it within the definition of a national system employer under s14(1)(e), agreeing with the former senior deputy president’s analysis.

Australian Health Practitioner Regulation Agency v Civil Service Association of Western Australia Incorporated [2013] FWC 3256 (23 May 2013) 
 

 
Competency-based training dispute
 
The Fair Work Commission was satisfied that the employer, at least since approval of the agreement, had done its best to meet its obligations under rail safety legislation. The Commission was also satisfied the employer genuinely tried to reach agreement with union. It was desirable that the employer continue to try and reach agreement, where possible, with the union over issues concerning the assessment and training of CountryLink Drivers. However, it was ultimately a matter for the employer how it met its obligations under rail safety legislation and this took precedence over any obligations arising under the agreement.

Australian Rail, Tram and Bus Industry Union v Rail Corporation of New South Wales [2013] FWC 2447 (30 May 2013) 
 

 
Bargaining representative must relate to business character
 
The substantial character of the business was car rental, not preparation for sale, repair or detailing. Therefore, the Australian Manufacturing and Workers’ Union (AMWU) was not able to represent the industrial interests of the employees as a bargaining representative. The business employed mechanics, Vehicle Service Agents (VSA), Vehicle Service Leads (VSAL) and Transport Drivers. It was established that there were no employee mechanics who were AMWU members. The remaining employees were engaged in cleaning, detailing and driving vehicles.

‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) v WTH P/L t/a AVIS Australia At Melbourne Airport [2013] FWC 3229 (28 May 2013) 
 

 
Payroll system approved for sending agreement details
 
The distribution of the required information relating to an enterprise agreement by the payroll system was fair, Deputy President Ashbury found. He noted:
‘In my view, the steps taken by Compass to explain the terms of the Agreement were more than reasonable, particularly given the size of the Company, the number of employees concerned and their geographic locations … It is not compulsory for employees to vote in a ballot for approval of an enterprise agreement, and it is not a requirement for approval by the Commission that the majority of employees who will be covered by an agreement approve its terms …’
Compass Group (Australia) Pty Ltd; Compass Group Remote Hospitality Services Pty Ltd T/A ESS Support Services Worldwide [2013] FWC 3160 (21 May 2013); Compass Group (Australia) Pty Ltd; Compass Group Remote Hospitality Services Pty Ltd T/A ESS Support Services Worldwide [2013] FWCA 3127 (17 May 2013)
 

 
Wage increase absorbed into over-award payments
 
The proposed agreement enabled the employer to absorb award pay increases into any over-award payment that applied. This fell within the category of a management practice associated with the administration of conditions. The union’s case was rejected.

NUW v Warehouse Solutions P/L [2013] FWC 3409 (13 June 2013) 
 

 
Industrial dispute sufficiently described
 
The employer submitted that a notice of industrial action did not specify the nature of the industrial action that was to be taken and was ambiguous and misleading, particularly due to use of word ‘bans’. However, a Full Bench of the Fair Work Commission held that the effect of the employer’s submission was that the proposed limitation on output was not a ban because it would allow some output. This proposition was not accepted. The notice contained sufficient specificity as to the nature of the proposed action. The Full Bench agreed with the Commissioner that the notice could have better described the nature of the action to be taken. However, the notice complied with the Act and served the purpose for which such notice is required. The appeal was dismissed.

Appeal by EnergyAustralia Yallourn P/L against decision of Bissett C of 21 February 2013Re: CFMEU [2013] FWCFB 3793 (17 June 2013) 
 

 
Multi-employer bargaining not preferred
 
Multi-employer bargaining was less likely to identify improvements in productivity and service delivery than enterprise bargaining. This case involved practice nurses. The application by the Australian Nursing Federation (ANF) related to low-paid authorisation in relation to nurses in general practice clinics and medical centres performing nursing work (practice nurses). The ANF sought to negotiate on behalf of nurses instead of covering a wider group of award-covered employees within general practices. Although their terms and conditions were probably less than in public hospital sector, different requirements and lifestyle factors needed to be factored into such analysis. Employer bargaining covering several hundred general practice employers was likely to be cumbersome. The Fair Work Commission was not satisfied that it was in the public interest to make the authorisation.

ANF v IPN Medical Centres P/L and Ors [2013] FWC 511 (17 June 2013)
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