Awards and agreements — cases wrap

Cases

Awards and agreements — cases wrap

Change of company name in agreement; Preferred hours clause not allowed in fast food agreement; Ballot on protected action approved; Vary modern awards rather than preserve old awards; Labour-hire agreement for casual flight attendants approved; State Wage Cases — NSW and SA.

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Change of company name in agreement; Preferred hours clause not allowed in fast food agreement; Ballot on protected action approved; Vary modern awards rather than preserve old awards; Labour-hire agreement for casual flight attendants approved; State Wage Cases — NSW and SA.
 
Change of company name in agreement
 
The FWA has agreed to a company’s application to change its name on a transitional enterprise agreement to reflect the transfer of the business within a group of companies.
 
Senior Deputy President Richards noted that FWA acted to remove ambiguity, but was wary of such changes because certain legal issues could arise if such changes were mismanaged
 
 
 
Preferred hours clause not allowed in fast food agreement
 
The FWA rejected an attempt by a fast food operator to pay ordinary time rates to casuals when the employees request early morning, night or weekend shifts.
 
Senior Deputy President Richards note:
‘Unlike segments of the horticultural industry, this segment of the fast food industry seemingly is not beset by significant fluctuations in demand for labour caused by contingent circumstances bearing on labour demand caused by weather and buyer preferences (as to degrees of colouration and ripeness of product) …
 
Nor is there any evidence of historical patterns of regulation that provide for preferred hours etc that have been approved by other tribunals and administrative bodies that have created particular labour costs structures over time …’
 
 
Ballot on protected action approved
 
FWA rejected an employer’s objection to a union’s ballot application being granted on the basis that while bargaining between the parties has been difficult in the past, there was no evidence the union ignored or rejected any proposal put forward by the company on this occasion.
 
A Full Bench held there was ample evidence and material before the FWA to conclude the union was genuinely trying to reach an agreement:
‘Although there might have been differences in negotiating styles and failings in regard to some aspects of the bargaining process, these did not detract from the general approach of the ASU in seeking to achieve an agreement with the company …’
 
 
Vary modern awards rather than preserve old awards
 
A Full Bench of FWA has ruled that old awards should not be preserved indefinitely to fill gaps in the modern award system, but rather modern awards should be varied to address omissions and oversights.
 
This decision concerned award modernisation and in particular the responsibility upon FWA to terminate certain instruments replaced by a modern award as soon as practicable after the modern award comes into operation.
 
Interested parties were given a further three months to make submissions on the complexities that have emerged during the process to terminate transitional awards.
 
 
 
Labour-hire agreement for casual flight attendants approved
 
FWA indicated that it was satisfied that the deal applying to casual flight attendants passed the BOOT.
 
An employee could only be disadvantaged for the purpose of the BOOT if they started from the position of having an advantage or benefit, but here there was no existing benefit or provision providing any entitlement.
 
The agreement provided 3% pay rises in October 2010, 2011 and 2012.
 
 
 
State Wage Cases — NSW and SA
 
State Wage Cases have little impact on private enterprise employers or employees now because the Fair Work system is the relevant source for wage adjustments. State Wage Cases continue to be determined because state public sector employees are still under the state IR systems.
 
Both the NSW case and the SA case adopted the essence of the federal determination
 
 
 
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