7 - 10 Split Pty Ltd T/A Seven Ten Split
[2010] FWA 274
•19 JANUARY 2010
[2010] FWA 274 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/23479)
THE SEVEN TEN SPLIT AGREEMENT
Entertainment and broadcasting industry | |
COMMISSIONER CAMBRIDGE | SYDNEY, 19 JANUARY 2010 |
Application for approval of the Seven Ten Split Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Seven Ten Split Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 7-10 Split Pty Ltd T/A Seven Ten Split (the Employer). The Agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] The application was lodged at Sydney on 23 December 2009. The application included a Statutory Declaration of Ang Ly, made on behalf of the Employer and dated 21 December 2009, (the Declaration). The Declaration stated that the Agreement was made on 20 December 2009, thereby satisfying the 14 day lodgement time limit established by s. 185 (3) of the Act.
[4] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (“FWA”) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[5] As can be seen from s. 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.
[6] In this instance, the Declaration stated that the date on which the last notice of representational rights was provided was 29 November 2009. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 20 December 2009.
[7] Consequently the Agreement does not comply with the requirements of s.181 (2) of the Act.
[8] It would be conceivable that the failure of the application to meet the procedural requirements of the Act could have arisen from mistake or some inadvertent error. However it would be potentially problematic to contemplate allowing for correction or amendment, perhaps under section 586 of the Act, given that; (a) the relevant material has been provided in the form of a Statutory Declaration, and (b) the procedural requirements are contained in the Act, and not some subordinate instrument.
[9] Any proper process to possibly permit correction or amendment would likely require a Hearing involving careful examination and testing of evidence from the deponent of the Statutory Declaration as a witness in the proceedings. In a practical sense, particularly as some of the terms of the Agreement appear to operate so as to cause the Agreement to fail the no disadvantage test, it would be potentially more costly and inconvenient to the applicant employer to allow the application to proceed at all.
[10] For the benefit of the Parties to the Agreement, the terms of the Agreement that appear to offend the no disadvantage test include:
1. The absence of a clause to provide for Sunday and public holiday rates.
2. The absence of a clause to provide for higher duties payment.
3. Clause 4.2 providing for termination of an employee on 1 day’s notice during the probation period.
4. Clause 11.5 providing a meal allowance of $7.45 instead of $8.45.
5. Clause 20 .1 where the rates per kilometre are 52, 62 and 63 instead of 62, 71 and 72 respectively.
6. Clause 23.1 providing for a “…al [sic] purpose rate of $43.70 per week…” instead of $48.10.
7. Clause 30.4 which provides for termination of employment without notice and without payment in lieu of notice if, inter alia, the employee is unable to meet the inherent requirements of the position.
[11] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application is dismissed.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
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