Agreements: Fri/Sat work; allowances; award benefits decreased

Cases

Agreements: Fri/Sat work; allowances; award benefits decreased

The interplay between agreements, awards and legislation can cause various contested matters to arise. These cases cover: family-friendly clauses, allowances, right of entry, adverse action, type of worker & conditions.

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The interplay between agreements, awards and legislation can cause various contested matters to arise. These cases cover:
 
Friday/Saturday work not in breach of family-friendly requirement
 
A Full Bench of the Fair Work Commission (FWC) found in favour of Bunnings when it interpreted cl 10.4.3 of the Bunnings Warehouse Agreement 2010. The clause states that in setting rosters the company ‘will have regard for the family responsibilities and other significant commitments of warehouse team members, and access to safe transport home by warehouse team members, as well as the operational requirements of the business and the need to be fair in its treatment of warehouse team members as a whole’.
 
The Full Bench rejected a shop assistant’s argument that family responsibilities were the primary factor in the clause. The company had relied on the operational requirements ground in support of its view that experienced and skilled employees in the assistant's position should fill the busy Friday and Saturday shifts.
 
The Full Bench noted: ‘Operational requirements involve more than mere preferences devoid of a perceived advantage. In our view an operational requirement is something that is considered to be of benefit to the business …’
 
The Full Bench also said Commissioner Roberts was right to conclude that Bunnings had complied with its obligations. It said the company had taken account of the family responsibilities of four employees — including the assistant — in the Special Orders, Kitchens and Flooring (SKF) area of the store by reformulating the roster to reduce the Friday/Saturday requirement.
 
Lamb v Bunnings Group Limited [2013] FWCFB 2698 (14 May 2013) 
 

 
No meal allowance for police officers
 
This matter involved the interpretation of operational orders which provided ‘members will be required to organise and supply their own meals’. Two police officers were engaged in a road operation. PFA submitted that operational orders did not take account of the fact that the two members concerned were working outside their normal response zone. The Commission was satisfied alternative facilities were reasonably available and appropriate for use by officers. The PFA submitted that because officers were not provided equipment in which to store fresh food during a shift, occupational health and safety considerations come into place which demanded alteration of existing clause. However, the Commission was not satisfied any such ambiguity or uncertainty existed. If there are occupational health and safety requirements for the provision of equipment to store fresh food then that matter could be looked at discreetly and it did not require alteration to a clause which contained restrictions on when an expense claim can be made. The application was dismissed.
 
Police Federation of Australia v Victoria Police [2013] FWC 2893 (10 May 2013)
 

 
Appeal over promotional structure in agreement dismissed
 
The United Firefighters’ Union (UFU) sought to make an instructors’ progression scheme applicable to existing employees in the training department. A Full Bench of FWC rejected the union submission on the basis that no one consideration and no combination of considerations was necessarily determinative of result. The UFU submitted that Roe C had failed to properly interpret and apply cl 74 of the Agreement to give effect to the parties’ intention to preserve the integrity of the rank and file promotional structure. The Full Bench held that it was doubtful if cl 74 had any substantial relevance to the task undertaken by the commissioner. The UFU appeal was dismissed.
 
Re: Metropolitan Fire and Emergency Services Board and Appeal by Metropolitan Fire and Emergency Services Board against order of Roe C of 29 January 2013 [PR533599]; Re: United Firefighters’ Union of Australia [2013] FWCFB 2301 (3 May 2013)
 

 
Some costs against CFMEU — right of entry
 
The Federal Circuit Court said that the CFMEU had had some grounds for pursuing this right-of-entry matter, but ‘approximately half of it was brought without reasonable cause’.
 
The court stated: ‘I accept that the CFMEU advocated positions on legal issues which were arguable but I also accept that the [company] accurately identified that the CFMEU’s case in relation to the alleged breach of s.502 of the FWA was based on factual assumptions which were not only not proved but which the CFMEU did not attempt to prove except by cross-examination …’
 
As a result, the CFMEU was ordered to pay half of costs for the unsuccessful entry challenge.
 
Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd & Anor (No.2) [2013] FCCA 215 (10 May 2013)
 

 
Vic Govt’s construction guidelines breached adverse action laws
 
Justice Bromberg in the Federal Court found that the Victorian Government took adverse action (federal law) against Lend Lease when it threatened to exclude it from the Bendigo Hospital project in 2012 and that it unlawfully coerced demolition contractor Eco Recyclers Pty Ltd to vary its enterprise agreement in another matter.
 
In the Eco case, Justice Bromberg held that head contractor McCorkell Constructions Pty Ltd had also taken adverse action against Eco’s employees when it excluded the contractor from the Circus Oz refurbishment project in Collingwood. In both cases, the government’s conduct was a reaction against union-friendly provisions in the two companies’ enterprise agreements.
 
Justice Bromberg noted the involvement of contractors in this type of work: ‘It is well known that the trend to self-employment was accompanied by a growing practice by enterprises to contract out or outsource to contractors many of the functions which had formerly been performed internally by a part of an enterprise’s direct workforce … In that context, enterprises that engage contractors have a heightened interest in the industrial rights, practices and arrangements made between the contractor and its employees. That is primarily because the employees of contractors commonly work in the same workplace as the direct employees of the principal or with employees of other contractors also engaged by the principal … the labour costs of a contractor would often be of significant relevance to the ultimate price paid by the principal … As a result, the interests of a principal in the workplace relations arrangements of a contractor may extend to the selection of employees, their terms and conditions of employment and the nature and extent of their union activities …’
 
Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 (17 May 2013); Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 (17 May 2013)
 
[Editor's note: Pending an appeal, the Vic government has revised guidelines to clarify guidelines do not require, encourage or promote contraventions of the Fair Work Act.]
 


Employees should be made aware of any decrease in award benefits
 
The employer’s representative declined to call employees as witnesses at the FWC’s request and prepared statutory declarations which the employees signed. The Commission remained concerned that the employees were not aware that the overall effect of agreement was to decrease award benefits otherwise payable to them. The application was consequently refused. If an agreement was inevitably going to reduce the remuneration that would otherwise apply under an award, care should be taken to demonstrate that all relevant information has been given to employees so that genuine agreement can be established, in the tribunal’s view.
 
Re ENM Group P/L [2013] FWC 3035 (17 May 2013)
 

 
Sales reps not contractors
 
The Federal Circuit Court rejected the company’s argument that it had clearly distinguished between employee and independent contractor arrangements at the company’s interviews with sales reps and had explained they were to be considered independent contractors.
 
The court stated: ‘I am not satisfied that the objective intention of the [representatives] was to enter contracts for services. I am not satisfied they had been given sufficient explanation or had sufficient knowledge to understand and appreciate the distinction between a contract for services and a contract of employment, despite the fact that each signed a document stating that he or she was not an employee …’
 
The court continued: ‘I do accept that [the company] hoped and intended to avoid financial liability to the [representatives] by characterising them as independent contractors so that they would only be paid per sale … there was a clear inequality of bargaining power between the parties …’
 
Fair Work Ombudsman v Metro Northern Enterprises Pty Ltd [2013] FCCA 216 (7 May 2013)
 


Union official not to exercise right of entry for remainder of calendar year
 
This was an application regarding the conduct of a CFMEU official who held an entry permit issued pursuant to s512 of the Fair Work Act 2009. The dispute concerned his conduct when exercising right of entry on the Wheatstone Project in Western Australia.
 
The Interim Order issued in March 2013 imposed a number of conditions and limitations on the official, U, relating to exercising his right of entry to the Project until the Deputy President determined the application. The alleged conduct included refusal to comply with a request that discussions take place in a meeting facility designated for that purpose and entering an area used mainly for residential purposes. The applicant complained that U held discussions with employees who were not entitled to be members of the CFMEU.
 
The FWC was satisfied U had not complied with his obligations in relation to rights exercisable under Act. The FWC found aggressive and abusive conduct had occurred that ran counter to the Object of the Act and the rights provided under it. The Deputy President had the view that in future U would not comply with the limits that right of entry provided.
 
The FWC decided not to permit U to exercise right of entry to the project for a period. The tribunal was satisfied restriction would not unduly interfere with the CFMEU’s capacity to fulfil its representative role. U was not permitted to exercise a right of entry at the project for the balance of calendar year.
 
Bechtel (Western Australia) P/L v Construction, Forestry, Mining and Energy Union-Western Australian Branch [2013] FWC 2498 (26 April 2013)
 
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