1
Fair Work Act 2009
s.185—Enterprise agreement
Main People Pty Ltd
(AG2014/6270)
MAIN PEOPLE PTY LTD AGREEMENT 2014
Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 DECEMBER 2015
Application for approval of the Main People Pty Ltd Agreement 2014.
[1] The Main People Pty Ltd Enterprise Agreement 2014 (Agreement), the Agreement,
the subject of this application for approval was made on 29 May 2014. An application for
approval of the Agreement was lodged by Main People Pty Ltd (Main People) in the Fair
Work Commission on the same day. The statutory declaration accompanying that application
disclosed that as of that date, Main People only employed three people on a casual basis who
were covered by the Agreement. Two of these were trades assistants and one was a
boilermaker. They were employed at Karratha in Western Australia. None of these three
remained employed by Main People.
[2] The application for approval of the Agreement is opposed by the Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (CEPU) and the Australian Manufacturing Workers’ Union (AMWU).
[3] The application has a long history which was set out in a decision of a Full Bench of
this Commission in Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia and the Australian Manufacturing Workers’
Union v Main People Pty Ltd1 and is not repeated here. The result in the aforementioned
decision was that the appeal brought by the CEPU and the AMWU was upheld and the
decision approving the Agreement was quashed. In so doing the Full Bench observed:
‘[41] It will be necessary for Main People’s application for approval of the
Agreement to be re-determined. Pursuant to s.607(3)(c)(ii) of the FW Act, we will
refer the matter to a member of this Full Bench for this purpose on the basis that the
Agreement may be approved if a re-formulated undertaking is proffered which:
(1) does not purport to change the coverage of the Agreement;
1 [2015] FWCFB 4467 at [2] – [17].
[2015] FWCA 8917
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCA 8917
2
(2) retains paragraphs 4 and 5 of the existing undertaking;
(3) requires the employer to identify, with respect to each employee engaged who
is covered by the Agreement, which modern award would apply to the employee’s
employment if the Agreement did not apply (the relevant award);
(4) requires the employer to pay to each employee, within each pay cycle, a total
amount which is a specified and not nominal monetary amount more than the amount
of pay the employee would have received if paid under the relevant award for the
work performed in that pay cycle; and
(5) provide the employee, each pay cycle, with a reconciliation which identifies
how the payment amount in (4) was calculated.
[42] The member to whom the matter is referred may in addition consider whether
there needs to be any additional requirements contained in the undertaking in order to
make it capable of acceptance under s.190(2). It will of course be necessary under
s.190(4) to seek the views of the bargaining representatives with respect to any revised
undertaking, and we consider in the circumstances of this case that the unions are also
entitled to be heard on the matter.’2
[4] The application for approval of the Agreement was remitted to me. Main People have
provided two forms of undertaking, the second of which was provided following a hearing
conducted on 18 November 2015 and correspondence from my chambers concerning the
adequacy of the first undertaking. Each undertaking sought to address the issues raised by the
Full Bench reproduced above.
[5] I will concern myself only with the second undertaking, the text of which is
reproduced below:
‘Main People Pty Ltd (Main People) gives the following undertaking in respect of the
Main People Pty Ltd Agreement 2014 (Agreement):
1. Main People will write to each Employee covered by the Agreement and
advise them of the modern award which would apply to each Employee’s
employment if the Agreement did not apply.
2. If an Employee has the relevant skills and qualifications and is required to
perform work for Main People within the scope of a classification higher than
C 10 in the Manufacturing and Associated Industries and Occupations Award
2010 (Metals Award) as per Schedule B of the Metals Award (if it applied to
his or her employment), Main People will ensure that the Employee will be
paid at a rate that maintains the wage relativities as reflected in Schedule B of
the Metals Award on the basis that the appropriate Award relativity will be
calculated by reference to the Level 1 base rate of pay in the Agreement as
follows:
2 Ibid at [41] – [42].
[2015] FWCA 8917
3
Metals Award Classification % of Level 1 base rate of pay under
Agreement
C10 100
C9 105
C8 110
C7 115
C6 125
C5 130
C4 135
C3 145
C2(a) 150
C2(b) 160
C1 180/210
3. If work undertaken by an Employee under this Agreement would be covered
by the Metals Award, Main People will:
(a) pay to each Employee, within each pay cycle, a total amount which is
no less than $2.00/hour more than the amount of pay the Employee
would have received if paid under the Metals A ward for the work
performed in that pay cycle; and; and (sic)
(b) provide each Employee with a reconciliation which identifies how the
payment amount in undertaking 3(a) above was calculated.
4. If work undertaken by an Employee under this Agreement would be covered
by a different modern award to the Metals Award, Main People will:
(a) pay to each Employee, within each pay cycle, a total amount which is
no less than $2.00/hour more than the amount of pay the Employee
would have received if paid under the relevant modern award for the
work performed in that pay cycle; and
(b) provide each Employee with a reconciliation which identifies how the
payment amount in undertaking 4(a) above was calculated.
5. Main People will only apply the roster cycles set out in clause 13(i) to 13(x) of
the Agreement.’
[6] The above undertaking differs from the first undertaking in that paragraph 3 of the
above is now in conformity with paragraph 4, although I note that the amount in paragraph 4
has been reduced to $2.00 per hour.
[7] During the course of the hearing before me on 18 November 2015 Counsel for the
CEPU and AMWU conceded that if the first undertaking proposed by Main People was
amended so that paragraph 3 was in conformity with paragraph 4 of the first undertaking then
[2015] FWCA 8917
4
the CEPU and the AMWU will have more difficulty maintaining their objection that the
Agreement does not pass the better off overall test (BOOT).3
[8] I am satisfied that the second undertaking proposed by Main People meets the
concerns expressed by the Full Bench, of which I was a member; about the better off overall
test (BOOT) and the form of the proposed undertakings as well as the concerns expressed in
an earlier Full Bench decision about the Agreement meeting the BOOT.4 In my view, the
objections of the CEPU and AMWU fall away given the terms of the second undertaking. I do
not regard the reduction of the amount in paragraph 4 of the undertaking as having a material
bearing on the adequacy of the undertaking to meet the BOOT concern.
[9] The views of the known bargaining representatives for the Agreement have been
sought by me. Specifically, in relation to both the first and the second undertaking proposed
by Main People, correspondence from my chambers was sent by registered post to the last
known address of each of the bargaining representatives for the Agreement. The most recent
correspondence was sent on 8 December 2015. The correspondence attached a copy of the
proposed undertaking and sought the views of the bargaining representatives. The bargaining
representatives were given until 15 December 2015 to provide any views. Contact details for
my chambers were also provided to each bargaining representative in the event that any of
them wished to discuss the matter or seek further clarification. As at the date of this decision,
no views been communicated to me by any of the known bargaining representatives. I also
have given each of the AMWU and the CEPU an opportunity- to comment on the proposed
undertaking. The views have been communicated in writing and also during the course of
proceedings on 18 November 2015. I have taken these views into account.
[10] In the circumstances, I am prepared to accept the undertaking proposed by Main
People in its correspondence of 4 December 2015 and with that undertaking I am satisfied that
the Agreement passes the BOOT. A copy of the undertaking is attached in Annexure A.
[11] Subject to the undertaking referred to above, I am satisfied that each of the
requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have
been met.
[12] The Agreement was approved on 24 December 2015 and, in accordance with s.54, will
operate from 31 December 2015. The nominal expiry date of the Agreement is 23 December
2019.
DEPUTY PRESIDENT
3 Transcript PN54 – PN57.
4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and
the Australian Manufacturing Workers’ Union v Main People Pty Ltd [2014] FWCFB8429 at [28].
WORK COMMISSION THE SEAL OF
[2015] FWCA 8917
5
Appearances:
D. Williams with T. Walthall for Main People Pty Ltd.
E. White of Counsel with L. Tiley for the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU).
Hearing details:
2015.
Melbourne, Brisbane (video hearing):
November 18.
Printed by authority of the Commonwealth Government Printer
Price code G, AE417261 PR575416
[2015] FWCA 8917
6
Annexure A
Main People 4 December 2015
Fair Work Commission Level 14, Central Plaza Two 66 Eagle Street Brisbane QLD 4000 Main People Pty Ltd (Main People) gives the following undertaking in respect of the Muin People Pty Ltd Agreement 2014 (Agreement): 1. Main People will write to each Employee covered by the Agreement and advise them of the modern award which would apply to each Employee's employment if the Agreement did not apply. 2. If an Employee has the relevant skills and qualifications and is required to perform work for Main People within the scope of a classification higher than C10 in the Manufacturing and Associated Industries and Occupations Award 2010 (Metals Award) as per Schedule B of the Metals Award (if it applied to his or her employment), Main People will ensure
that the Employee will be paid at a rate that maintains the wage relativities as reflected in Schedule B of the Metals Award on the basis that the appropriate Award relativity will be calculated by reference to the Level 1 base rate of pay in the Agreement as follows: Metals Award Classification % of Level 1 base rate of pay under Agreement C10 100 C9 105 C8 110 C7 115 C6 125 C5 130 C4 135 C3 145 C2(a) 150 C2(b) 160
C1 180/210 3. If work undertaken by an Employee under this Agreement would be covered by the Metals Award, Main People will: (a) pay to each Employee, within each pay cycle, a total amount which is no less than $2.00/hour more than the amount of pay the Employee would have received if paid under the Metals Award for the work performed in that pay cycle; and; and (b) provide each Employee with a reconciliation which identifies how the payment amount in undertaking 3(a) above was calculated.
[2015] FWCA 8917
7
2 4. If work undertaken by an Employee under this Agreement would be covered by a different modern award to the Metals Award, Main People will: (a) pay to each Employee, within each pay cycle, a total amount which is no less than $2.00/hour more than the amount of pay the Employee would have received if paid under the relevant modern award for the work performed in that pay cycle; and (b) provide each Employee with a reconciliation which identifies how the payment
amount in undertaking 4(a) above was calculated. 5. Main People will only apply the roster cycles set out in clause 13(i) to 13(x) of the Agreement. Yours Sincerely Jeff Grendon Manager - Employee Relations
