AG2012/14, Transcript of Proceedings [2012] FWATrans 503 (15 May 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033557-1

COMMISSIONER ASBURY

AG2012/14

s.185 - Application for approval of a single-enterprise agreement

Application by Wastell Employment Services Pty Ltd and Arlingtonford Pty Ltd
(AG2012/14)





Brisbane

2.10PM, FRIDAY, 4 MAY 2012

PN1

THE COMMISSIONER: Good afternoon. Please be seated. I will open this hearing into AG2012/14. The matter is an application by Wastell Employment Services Pty Ltd and Arlington Pty Ltd trading as Wastell Milk Haulage. The application seeks approval of an enterprise agreement under section 185 of the Fair Work Act. I have listed the matter today just to outline some issues that I have with the agreement and to give you an opportunity to address those, Mr Lancaster. They will be on the transcript and you can have some time to consider what you want to do with respect to them.

PN2

MR T. LANCASTER: Thank you, Commissioner.

PN3

THE COMMISSIONER: Working through the agreement - just bear with me for a minute. Sorry. I’m just sending my associate out to get something. In clause 5.3 which deals with casual employment, there’s no provision about the right of casual employees to seek to convert their employment to part-time or full-time employment which is a right that’s found under the Road Transport and Distribution Award, which is the reference instrument for the purposes of the better off overall test. That matter isn’t mentioned in the response the employer made to the questions in the declaration with respect to the better off overall test so I guess I would ask that consideration be given to including a reference to that provision by way of an undertaking, or you might have some other response, Mr Lancaster, as to why, notwithstanding that matter isn’t included, employees are still better off overall.

PN4

With respect to hours of work, it’s quite a broad clause. It talks about working Monday to Sunday, a rotating roster: eight hours per day worked between 4 am and 7 pm Saturdays and Sundays at ordinary rates and overtime paid at three hours at time and a half and then double time except where there’s a flat hourly rate. There doesn’t seem to be, that I can see, a weekly limit to hours of work. Am I missing something in the agreement?

PN5

MR LANCASTER: No, Commissioner. Clause 5.1 and 5.2 do list that permanent employees are engaged to work either a minimum of 38 hours or less than 38 hours per week respectively.

PN6

THE COMMISSIONER: Yes, but it doesn’t say what the maximum they will be working is and it doesn’t appear that there’s any - I mean, what happens when they work outside of - are you intending that overtime is paid after eight hours in a day or after 38 hours in a week? It’s just not very clear as to when - because it just says overtime will be paid, three hours at time and a half and then double time without saying what overtime is. Is it hours in excess of eight? Is it hours in excess of 38? What exactly is it?

PN7

MR LANCASTER: I believe that’s the intention, that it’s past eight hours in a day or 38 hours in a week.

PN8

THE COMMISSIONER: Okay. Perhaps you could consider giving an undertaking about that because it’s just difficult to know. Then you have got employees who are working under the flat rate system and I assume they don’t get overtime, that they just get the flat rate for all hours worked.

PN9

MR LANCASTER: Yes.

PN10

THE COMMISSIONER: In which case, I haven’t got a roster or any idea of what hours they will be working so I can see when the tipping point is, where they will be better off and where they won’t. I accept that working every hour at a loaded rate can result in people being better off overall even though some of those hours are overtime because you’re being paid more for the ordinary hours but there usually is a tipping point where they stop being better off overall, so either I would want to see some calculations about when that tipping point is or alternatively, you might just consider giving a general undertaking - and I think you will find that Livingstons has given them with respect to other agreements - where you just say that employees are entitled to once a year request a reconciliation to see whether they would have been better off under the award than they are, or paid at least what they would have been paid under the award for working those hours. If they’re not, then they’re entitled to be reimbursed the difference and they’re also entitled to a reconciliation on termination of employment.

PN11

MR LANCASTER: Of course.

PN12

THE COMMISSIONER: You might consider that because otherwise I just can’t tell the point at which they’re better off and the point at which they’re not.

PN13

MR LANCASTER: Sure. We will get instructions on that, Commissioner. Thank you.

PN14

THE COMMISSIONER: Okay. With respect to the meal allowances, they’re not in accordance with the award. Under the award, there’s a paid break of 20 minutes and then a further paid 20-minute break after each four hours worked, so you might give consideration to again how you say that people are better off. Other than those issues - if you can address those issues for me? Also, sorry, the rates for when people are - if they’re only paid ordinary hours on Saturdays and Sundays, the general undertaking will address that because under the award, obviously they’re entitled to time and a half from midnight Friday to Saturday and double time for ordinary hours from midnight Saturday to midnight Sunday, so the general undertaking would address that issue as well.

PN15

MR LANCASTER: Okay.

PN16

THE COMMISSIONER: Because depending on how many Saturdays and Sundays they work, they may not be better off even though your rate is loaded.

PN17

MR LANCASTER: Sure. I understand that, Commissioner. Just in regard to your first point about casuals seeking conversion to permanent employment, I understand that the agreement is silent on that point and as it incorporates the Road Transport and Distribution Award, that clause should be read as a term of the agreement.

PN18

THE COMMISSIONER: Yes. I still think I would like to see it made clear because I think people need to be aware of what their rights are.

PN19

MR LANCASTER: Of course. I understand that, Commissioner.

PN20

THE COMMISSIONER: Okay?

PN21

MR LANCASTER: Yes. Thank you, Commissioner. I will get instructions on them and get back to you.

PN22

THE COMMISSIONER: All right, and if you can come back to me. I will release the transcript and if you can come back within seven days of receiving the transcript, that would be great. If you can address those issues, I will approve the agreement.

PN23

MR LANCASTER: Of course. Thank you very much, Commissioner.

PN24

THE COMMISSIONER: Thank you. All right. On that basis I will adjourn.

<ADJOURNED INDEFINITELY [2.18PM]