Agreements: points of note from the FWC


Agreements: points of note from the FWC

FWC enterprise agreements decisions: Rotating roster | Bargaining representative & information to employees | Appeal and 'persons aggrieved by decision' | Public holiday pay | Roster change & public holidays | Annual leave loading | Income protection insurance & firefighters | Dispute settlement procedure.


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The Fair Work Commission regularly decides contested issues involving enterprise agreements. 
Each case note concludes with a link to the full text of that case.

Rotating roster and implementation 
FWC heard the case of an applicant unwilling to work a rotating roster because of family responsibilities. Tribunal found that the roster was fairly implemented. There were genuine business requirements to increase staff numbers in affected area on Fridays and Saturdays. Tribunal noted that the employer had made no threat to the employee’s continued employment and was willing to reduce his hours of work to part-time employment of three days per week:
‘If Mr L adopts the part-time option, I expect that [employer] would only ask him to work on a Friday or Saturday in extraordinary circumstances.’
L v Bunnings Group Limited [2013] FWC 201 (16 January 2013)

Bargaining representative and information to employees 
A Full Bench of FWC has ruled that employers must advise employees that their union is their default bargaining representative if they want their enterprise agreements approved. The FB followed the majority ruling in the November 2012 Ostwald Full Bench decision. 

Veolia Environmental Services (Australia) Pty Ltd v The Australian Workers' Union
 [2013] FWCFB 269 (15 January 2013)

Appeal and ‘persons aggrieved’ by decision’ 
A Full Bench of FWC noted that the expression ‘a person who is aggrieved by a decision’ should not be subjected to a restrictive interpretation. It was satisfied that the appellants were persons aggrieved by the decision subject to appeal. Section 604 was the relevant provision. 

Appeal by Transport Workers’ Union Australia & Ors against decision of Watson VP of 18 October 2012 [[2012] FWA 8772] Re: Coles Supermarkets Australia P/L v Transport Workers’ Union of Australia
 [2013] FWCFB 276 (17 January 2013)

Public holiday pay 
A Full Bench of FWC found that although accrual of flexi-time was not allowable on public holidays that did not preclude a finding that the relevant employees under the agreement were entitled to a public holiday without loss of pay.

Appeal by Asurco Re Asurco Contracting P/L Collective Bargaining Agreement 2010–2013
 [2012] FWAFB 9711 (15 November 2012)

Roster change and public holidays 
FWA heard the employer argument that its agreement allowed change to the roster with 36 hours notice. So it allowed employees who ordinarily worked on Monday to have their hours transferred to Friday, when public holidays fall on a Monday, therefore the public holiday no longer forms part of the ordinary hours work. This argument was rejected by FWA. Provision in the agreement was constrained s116 of the Fair Work Act 2009. There was specific inability of the employer in the relevant clause to designate a public holiday as a rostered day off. The employees were entitled to ordinary hours pay on a public holiday which they would normally have worked. Pursuant to s62(4) of the Act, ordinary hours on a public holiday are to be included as part of their 38 ordinary hours per week. When an employer requires employee to work an additional day in the same week as a public holiday, that day is deemed overtime and should be paid accordingly.

Australasian Meat Industry Employees Union v Harvey Industries Group P/L
 [2012] FWA 7183 (20 November 2012)

Annual leave loading 
A FB of FWC referred the matter back to a commissioner to consider changes made by an employer to the payment of annual leave loading, effectively reducing payment. Union argued that in the earlier decision against the union’s position the tribunal took the wrong approach to the task of interpreting (ie that decision reflects an error in approach by imposing a burden on union to disprove interpretation put forward by employer).

Appeals by CFMEU and AMWU and Anor against decision of Blair C of 17 April 2012 [[2012] FWA 2946] Re: SCA Hygiene Australasia P/L
 [2012] FWAFB 9505 (12 November 2012)

Income protection insurance scheme and firefighters 
A FB of FWA ruled that as there were potential consequences for all firefighters, no order should be made. It was not satisfied that evidence before Commissioner provided sufficient basis for the order. The commissioner failed to adequately consider likelihood that premiums would alter after first 12 months of operation with possible consequence that order would cease to have effect. No order should be made — the issue should instead be dealt with in negotiation for next enterprise agreement.

Appeal by Metropolitan Fire and Emergency Services Board against decision and order of Roe C of 20 and 23 July 2012
[[2012] FWA 5330] Re: United Firefighters’ Union of Australia [2012] FWAFB 9555 (13 November 2012)

Dispute settlement procedure and matters arising under agreement 
FWA found that dispute related to the application of disciplinary policy and the policy was not incorporated into or referenced in the agreement. The tribunal concluded that although dispute was employment related, these matters did not constitute a dispute relating to a matter arising under the agreement. The jurisdictional objection was upheld.

Kogan Creek Power Station Enterprise Agreement 2011
 [2012] FWA 9641 (13 November 2012)
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