McDonald’s deal advantages employees ‘on balance’, rules Full Bench

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McDonald’s deal advantages employees ‘on balance’, rules Full Bench

A McDonald’s enterprise agreement should be registered despite the fact it contained some provisions that disadvantaged workers, a Full Bench of FWA has ruled.

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A McDonald’s enterprise agreement should be registered despite the fact it contained some provisions that disadvantaged workers, a Full Bench of FWA has ruled.
 
The Full Bench found that ‘on any balanced consideration’ the agreement contained advantages to the employees.
 
The agreement was initially rejected by Cmr Donna Mckenna in April for a number of reasons including the failure to:
  • properly communicate to all employees the time and place of the agreement ballot and the method of voting
  • explain the terms of the agreement and their effects to employees
  • explain the agreement in an appropriate manner
  • ensure the agreement was genuinely agreed to.
 
McDonald’s had appealed the decision.
 
In giving its reasons this week on why it had over-ruled Cmr McKenna, the Full Benach said it had found deficiencies in her decision. It also stated that her 110-page decision was ‘very lengthy’.
 
Minimised
 
The Full Bench said it considered that the Agreement does contain some disadvantages to employees compared to the content in reference instruments.
 
‘The disadvantage is minimised in many cases by undertakings given by McDonald’s,’ it said.
 
‘In other cases the disadvantage is confined to a small proportion of employees and is the consequence of adopting uniform national provisions, or contingent on future events.’
 
‘Some disadvantage exists in relation to the wage rate for some age groups in Western Australia, the casual loading in Western Australia, some allowances, weekend overtime in Western Australia, public holidays in the ACT, South Australia and Northern Territory, redundancy, and compassionate leave consequent on the reduction of benefits to the level in the NES.’
 
‘The agreement contains advantages to certain groups of employees or generally in relation to the classification structure, the rates of pay, early morning work penalties, hours of work provisions, minimum engagements, overtime rates, redundancy entitlements, casual loadings, junior rates, allowances, salary sacrifice, breaks, annual leave, public holidays, emergency services leave, national disaster leave, jury service, unpaid leave, blood donor leave, bone marrow leave, defence force leave, part-time employment and dispute resolution.’
 
‘There is a savings provision in the agreement to protect each individual’s current rate of pay.’
 
Advantages
 
‘We have considered the comparative material which explains the relevant advantages and disadvantages to employees and have concluded that the agreement does not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under reference instruments applying to the employees.’
 
In her decision, Cmr Mckenna said that a clause allowing for employees to be called in for one-hour ‘voluntary’ meetings of shift crews disadvantaged workers; however, the Full Bench said she had not taken into account other increases to minimum engagement periods.
 
‘For junior employees, the additional income that is likely to arise for each engagement is significant,’ the Full Bench said.
 
‘On the other hand, the voluntary attendance at crew meetings, even if it involves a reduction in entitlements, is far outweighed by the more beneficial entitlements. Any balanced consideration of these provisions would determine that the Agreement contains advantages to employees in this regard.’
 
The Full Bench also rejected Cmr McKenna’s criticism that McDonald’s had supplied additional information to its employees during the mandatory seven-day access period to assess the agreement. It said this was open to employers as long as such a step was ‘reasonable’.
 
It said the Fair Work Act 2009 did not preclude explanations during this period.
 
The Full Bench also found it was acceptable for McDonald’s to make use of the Shop, Distributive and Allied Employees’ Association (SDA) to explain the agreement to the workforce.
 
Prudent
 
And it criticised Cmr McKenna’s view that failings in the statutory declarations by McDonald’s in themselves justified rejecting the agreement.
 
The Full Bench said it was ‘prudent for FWA to draw these matters to the attention of the parties and give them an opportunity to supplement the material they have filed’.
 
It said Cmr McKenna had made ‘fundamental errors’, allowed McDonald’s appeal and approved the agreement.
 
 
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