The attached document replaces the document previously issued with the above code on 27 June 2011.

A typographical error in the title has been corrected.

Carolyn Jurott

Associate to DEPUTY PRESIDENT ASBURY

Dated 16 October 2014

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Poolhaven Pty Ltd
(AG2011/7619)

POOLHAVEN ENTERPRISE AGREEMENT 2011

Application for approval of the Poolhaven Enterprise Agreement 2011 - requirement of s.186(d)(2) that the Agreement passes the better off overall test - Approval under s.189 on the basis that because of exceptional circumstances approval would not be contrary to the public interest.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Poolhaven Enterprise Agreement 2011 (the Agreement). The Agreement is a single-enterprise agreement.

[2] I am generally satisfied that the requirements of ss.186, 187 and 188 for approval have been met. However, I am not satisfied that the Agreement passes the better off overall test.

[3] In the Employer Declaration in Support of Approval of the Agreement Form F17, the reference instrument nominated by the employer for the purposes of establishing whether the Agreement passes the better off overall test is The Horitcultural Award 2010 (the Award).

[4] On 19 May 2011 correspondence was forwarded to the employer in relation to a provision in the Agreement for employees to work “Additional Voluntary Hours” and to be paid for such hours at ordinary rates. The employer was informed that prima facie the Agreement did not pass the better off overall test, on the basis that if Additional Voluntary Hours were worked under the Award, employees would be entitled to be paid for such hours at overtime rates. The employer was also informed that wages and other terms and conditions of employment under the Agreement were not sufficient to offset the reduction which would result from the implementation of Voluntary Additional Hours.

[5] The provisions of the Agreement in relation to Voluntary Additional Hours are identical in effect to those considered by a Full Bench of Fair Work Australia in Bupa Care Services Pty Ltd 1. In that case, the Full Bench held that such a provision caused an agreement to fail the then no disadvantage test, on the basis that there were no benefits provided under the agreement to offset the removal of overtime payments, and that the application of that test involved an analysis of the Agreement, and not the effect that its terms may have on the actions of the employer and the employees.

[6] The employer was unable, in its response to the correspondence of 19 May 2011, to point to any matter which could cause the Agreement to pass the better of overall test. The employer was provided with an opportunity to consider whether approval of the Agreement was sought on the basis of the grounds in s.189 of the Act, and to provide further information in relation to whether there were exceptional circumstances, such that approval of the Agreement would not be contrary to the public interest.

[7] Further information in the form of Affidavits, was provided by the employer on 8 June and 16 June 2011. That material indicates that there are exceptional circumstances such that approval of the Agreement would not be contrary to the public interest, on the basis that the employer’s business has been impacted by:

● The non-occurrence of “winter” in the Cairns region in 2010 which detrimentally impacted on the production of fruit for the 2009/2010 season;
● The Queensland floods; and
● Cyclone Yasi.

[8] Although these exceptional circumstances are all one-off events, the combination of the three over a short period of time has had a detrimental impact on the farm. Ms Brazzale, a Director of Poolhaven Pty Ltd, states in an affidavit, provided on behalf of the employer, that the success of the farm depends on it being able to “meet the market”. Due to the combination of the three natural disasters, the farm has “missed the market” this year. Ms Brazzale also states that due to the above natural disasters, the farm is not in a financial position to pay the penalty rates provided for in the modern award.

[9] After considering the material provided by the employer, I am satisfied that there are grounds for the Agreement to be approved under s.189 of the Act. In reaching this conclusion, I am of the view that I am not required to approve the Agreement under s.186 of the Act, and the only reason for this is that the Agreement does not pass the better off overall test. I am also satisfied that the Agreement should be approved because there are exceptional circumstances and approval would not be contrary to the public interest. In particular I note that the term of the Agreement is for a period of only 12 months.

[10] The Agreement is approved under s.189 of the Act, and will operate for a period of 12 months from the date of approval in accordance with s.189(4) of the Act and clause 4 of the Agreement.

COMMISSIONER

 1   Bupa Care Services Pty Ltd (C2010/26254) P&A Securities Pty Ltd as Trustee for the D’AGostino Family Trust T/as Michel’s Patisserie Murwillumbah and Others [2010] FWAFB 2762.

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