Aircraft Maintenance Services Australia Pty Ltd

[2016] FWCA 62

[2016] FWCA 62

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aircraft Maintenance Services Australia Pty Ltd
(AG2015/7673)

THE AIRCRAFT MAINTENANCE SERVICES AUSTRALIA - ENTERPRISE AGREEMENT.

Airline operations
COMMISSIONER SIMPSON	BRISBANE, 13 MAY 2016

Application for approval of the Aircraft Maintenance Services Australia - Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Aircraft Maintenance Services Australia - Enterprise Agreement (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Aircraft Maintenance Services Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] Statutory Declarations from The Australian Workers’ Union (AWU) and The Australian Licensed Aircraft Engineers Association (ALAEA) were submitted objecting to the agreement being approved for various reasons.

[3] The matter was listed for Directions 9 February 2016 when directions were set requiring the Applicant to file any further material in support of their application in the Fair Work Commission, and serve a copy on the AWU and the ALAEA, by no later than 29 February 2016, and the AWU and ALAEA were to advise by 7 March 2016 whether they wish to continue their objection to the application and that the matter would be listed for hearing if objections were not withdrawn.

[4] Further submissions and reply submissions were filed by the respective parties and also a number of adjournment requests have been made and granted. The matter was heard on 22 April 2016. I will deal with each of the objections in turn.

Was the Agreement Genuinely Agreed?

[5] The Unions raised concerns regarding the eligibility of certain casual employees to vote in the ballot for the Agreement.

[6] The context in the particular facts of this case are that the Form F17 Statutory Declaration of the employer advised that 124 employees would be covered by the agreement, 103 cast a valid vote and 53 voted to approve the agreement, and 50 voted against.

[7] The Applicant filed with its submissions a Statutory Declaration from Kim Chan, a Consultant of Livingstones stating he was charged with conducting the electronic ballot using “Survey Monkey”. He attached to his statement a graphical representation of the electronic ballot results as exported from “Survey Monkey”, and he also attached a declaration of the ballot results and set out the steps taken in conducting the ballot.

[8] A further Statutory Declaration was provided from Tiffany Png, the Applicants Payroll Officer. She said in her Statutory Declaration that ASMA has a number of casuals who are available to work at various times depending on their availability, AMSA’s requirements, and importantly their respective aircraft licensing qualifications.

[9] Ms Png said that due to the licensing requirements and availability of casual employees some may work more regularly than others again due to licence coverage and the need to replace permanent employees during absences on annual leave or personal leave.

[10] Ms Png said ASMA follows a regular practice of removing casual employees who have not worked for at least three months from the Company records to ensure only casual employees who are active and involved in the company are recorded. Ms Png provided numbers of active casual employees engaged by ASMA during the months of October, November and December 2015 and January 2016.

[11] The unions relied on the first instance decision in McDermott Australia Pty Ltd [2016] FWC 113 of 25 February 2015 and also the Federal Court decision in National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (‘Swinburne’) in support of their submission that some casual employees may not have been eligible to vote.In the period between the filing of submissions by the parties and the hearing of the matter a Fair Work Commission Full Bench handed down its decision in an appeal in the McDermott matter. 1

[12] The Applicant supplemented its submissions of 24 March addressing this issue 2 with further reply submissions on 21 April, the day before the hearing. These further submissions were made in light of the Full Bench decision issued on 19 April in McDermott.

[13] The Applicant submitted that the Federal Court decision Swinburne is not authority for the proposition that only casual employees employed during the seven day access period were entitled to vote to approve the Agreement, and sought to distinguish the facts in this case with the circumstances in Swinburne. In Swinburne many employees were included in the ballot based on them having been employed in the previous academic year.

[14] The Applicant referred to part of the decision of Justice Pagone where it was said as follows in regard to those included in the ballot in the Swinburne matter:

“[36] …The selection of persons who had been engaged as sessional employees in the previous academic year is some guide to whether they are usual employees at the time of the ballot but the adoption of that group of people as usual employees without Swinburne having made “reasonable and diligent inquiries” of the kind referred to by the Commission at [34] meant that those voting included some who could not be regarded as usually employed by Swinburne and excluded some who were.”

[15] The Applicant referred to a number of other authorities including the Full Bench decision in McDermott and specifically paragraph 35 of that decision which reads as follows:

“[35] The Commissioner was of the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote. This in our view is incorrect; the status of the 36 casual employees at the time of the vote is a natural and expected phenomenon of being employed on a casual contract as per the Full Bench decision in Smiths Snackfood. In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period. There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only “employed at the time” they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included “usually employed”.

[16] The Applicant further relied on the Full Bench decision in McDermott when it noted a group of casual employees should have been included to vote in that matter and distinguished Swinburne from the circumstances in that case as follows:

“[38] The Commissioner at paragraph [26] of his decision accepted that the persons asked to approve the Agreement by voting for it were casual employees of McDermott. As stated in evidence by Mr McMahon all employees that were hired to work on the Project, had completed paid training for the Project and none had resigned or had been terminated by McDermott or indicated they were not available for future work. The project had commenced, the employees had been engaged specifically for the Project. Unlike the facts in Swinburne, the casual employees were employed at the time, they were not a cohort “likely to be engaged” or “usually employed.” It was legitimate and necessary for them to be included in the group of employees asked to approve the Agreement.”

[17] The Applicant submitted it engages licensed aircraft engineers (LAME’s) as well as aircraft maintenance engineers (AME’s) to carry out work on its various aircraft around Australia for its various clients such as Singapore Airlines, Malaysian Airlines, Jetstar and Air New Zealand. It was said the nature of the work is largely based on an airline schedule, which includes aircraft turnaround times, and line maintenance which is planned for scheduled turnaround times. However, the nature of aviation is that scheduled arrivals occur regularly, as do ‘aircraft on ground’, which requires a dedication of resources in a short period to enable the airlines to meet scheduled departure times.

[18] The Applicant submits that some LAME’s and AMEs are employed as casuals, normally in accordance with a roster, which is usually posted several weeks in advance. It was said the nature of engagements will vary based on maintenance requirements, including license requirements for LAME’s as well as employee availability, and as a general rule the Applicant removes casual employees that have not been employed for a three month period from the contact list.

[19] The Applicant submits that the casual employees that voted had worked during the period of three months before the ballot, and during the three months after the ballot were engaged on a regular and systematic basis such that they were employed at the time.

[20] The Applicant emphasised that the employees in question are required to have an aviation security identification pass, which is a requirement from federal authorities which requires employees to undergo various checks including police checks.

[21] The Applicant attached with its reply to further submissions filed on 21 April a table showing the total and average hours worked by each casual employee who participated in the ballot in the three months immediately preceding and the three months immediately following the ballot to approve the Agreement.

[22] On having read the Applicants submissions filed on 21 April (the day prior to the hearing), I directed my associate to send an email to the Applicant’s representatives copied to the other parties requesting that the Applicant provide the Commission with the actual hours worked by each casual employee in each week in the respective three month periods before and after the ballot. The Applicant advised at the hearing on 22 April that fortnightly records would be relatively easy to extract as the payroll is over a fortnightly period. This additional information was subsequently provided to my chambers on 29 April 2016.

[23] I have reviewed that information which indicates 33 casual employees participated in the ballot. I am satisfied by the further material provided by the Applicant, given the regular and systematic employment of each of the casual employees included in the ballot, before during and after the ballot that each casual employee was employed ‘at the time’ as intended by the expression as it appears in section 181(1) of the Fair Work Act 2009 (Cth) (‘the Act’).

[24] A further issue was raised regarding one employee potentially voting twice in the ballot conducted between Wednesday 18 November 2015 and Wednesday 2 December 2015. The Applicant advised that the ballot result was scrutinised by a representative of the ALAEA 3 and the Applicant also provided the Statutory Declaration from the Consultant who conducted the ballot, as referred to above setting out the process for the conduct of the electronic ballot and identifying the particular employee in question at paragraph 3 of the Statutory Declaration dated 12 January 2016. I am satisfied by this information that it resolves the concern regarding the potential question of whether an employee voted twice as there was no opportunity to do so.

[25] On the basis of my findings above, I am satisfied that the agreement was genuinely agreed.

Signature Issues

[26] The ALAEA submitted that when a proposed Enterprise Agreement is submitted for approval, a signed copy of the Agreement is required by the combination of subsections 185(2) and 185(5) of the Act and regulation 2.06A of the Fair Work Regulations 2009 (Cth) (‘the Regulations’).

[27] The ALAEA submitted that within the 14 day timeframe for an application to approve the proposed agreement after it was purportedly made no signed copy (as defined by the above provisions) was lodged (Attachment F to the company’s application for approval is not a signed copy). The cumulative effect of these provisions is that, when the application was made, it was not compliant with section 185 of the Act. The ALAEA referred to the decision in Deputy President Kovacic in Malteurop Australia Pty Ltd [2014] FWC 2476 (‘Malteurop’).

[28] The ALAEA emphasised the period of time that elapsed after the making of the application before the company attempted to lodge an alternate signature page signed by two individuals stating they are employees to be covered by the agreement. The ALAEA submitted that AMSA cannot retrospectively remedy their deficient application by submitting a completely different signature page well after the statutory period in which an application for approval is to be made.

[29] Further, or in the alternative, the ALAEA submitted that if the Commission is willing to accept the revised signature page, that neither named employee was an employee bargaining representative or played any role at all in the protracted negotiations leading up to the vote for the proposed Agreement. It was said there is no explanation of either of the individual’s authority to sign the Agreement on the document as is required by reg 2.06A(2)(b)(ii) of the Regulations.

[30] The AWU also submitted that the Agreement had not been properly made in accordance with section 185 of the Act and Regulation 2.06(a).

[31] The Applicant submitted that given that both the ALAEA and the AWU (as bargaining representatives) declined to sign the Agreement notwithstanding the majority vote by the employees in favour of the Agreement, the Applicant on 29 January 2016 provided the Commission with signature pages for the Agreement signed by two employees who would be covered by the Enterprise Agreement. The Applicant submits this is a reasonably common practice within the Commission to accept Enterprise Agreements signed by individual employees who are not “appointed bargaining representatives” but are signing on their own behalf in their position as an employee.

[32] The matter was the subject of further submissions at the hearing on 22 April 2016. The Full Bench decision in McDermott [2016] FWCFB 2222 referred to above also addressed, at least in part a similar objection to the objection made in this matter. The Full Bench said as follows:

“[56] In this case, Mr Coleman is an employee in a class of employees who will be bound by the Agreement; as such he is therefore a representative of the employees covered by the Agreement. The authority in the context of the regulation is the employee’s capacity to sign; which in Mr Coleman’s case is that he is an employee covered by the Agreement.

[57] Regulation 2.06A does not require a representative who signs the Agreement to be appointed. The Explanatory Statement cannot elevate the signature requirements to be in excess of the Regulations. While there is no reason why employees could not appoint a representative to sign on their behalf as suggested in the Explanatory Statement, it is not a mandated requirement, nor is there any prescribed process for ‘appointing’ a representative.”

[33] For the same reasons as given by the Full Bench, the two employees who have signed the agreement can do so as representative of the employees. I note one of those employees has not provided a proper address with their signature, however the other employee has and that is sufficient for the purposes of section 185(2) of the Act in combination with the signature of the authorised representative of the employer.

[34] I also do not accept the submission that the effect of subsections 185(2), 185(3), and 185(5) of the Act taken together mean there was not an application before the Commission when it was filed and therefore the application cannot be approved. This submission is put on the basis as I understand it that as the employee signatures were not provided to the Commission within the 14 days after the agreement was made, or at the time of filing, there was never a proper application.

[35] The Application itself (namely the Form F16) was made within time as the voting concluding on 3 December and the Application was filed on 15 December. The Application was accompanied by a Form F17 Employer’s statutory declaration and a copy of the Agreement that was balloted. However, the Agreement at the time of filing was not signed in accordance with the requirements of the Act when it was filed with the Application.

[36] The deficiency in the manner in which the Agreement was signed was rectified later by the provision of signature pages from two employees, given that the two Union bargaining representatives had declined to sign the Agreement. The fact that the deficiency in the provision of an employee representative signature at the time of filing of the Application was not corrected until sometime after filing does not have the effect that the Application for approval of the Agreement cannot now go ahead. The effect of the ALAEA submission is that failure to file an Agreement signed in conformity with the Act at the same time as the filing of the Application itself is fatal to the Application and cannot be rectified. There is no such mandatory requirement in the Act.

BOOT Issues

[37] The Applicant submits that the Agreement more than adequately meets the requirements of the Act’s Better off Overall Test. The Applicant submits that in addition to the composite salary rates applicable to all employees, superannuation is payable on these additional higher amounts.

[38] In relation to Clause 2.11 – Salary Rates and Clause 2.13.2 – Composite Salaries, the Applicant provided the Commission with a spread sheet covering the period 5 October 2015 to 1 November 2015, as per the rosters worked by a sample of employees. Calculations were for four different categories of employees, LAME 1, 2, 3 and 4 and AME 1, 2, 3, 4 as well as a casual LAME and casual AME. Included in this spread sheet was the SGC calculation for these employees compared to the Award entitlements.

[39] The Applicant submitted that from the summary wage comparison spread sheet that in no case was any employee paid less than the Award rate and in some cases for the period of four weeks, particularly for LAMEs, the difference can be quite substantial, namely several thousand dollars. The Applicant submitted that the rostered period is indicative of the normal rosters worked by these employees.

[40] The Applicant drew attention to a further benefit contained in the Agreement at Clause 2.13.7 which provides for “sign on bonus” for employees once the Agreement is approved by Fair Work Commission.

[41] The Applicant also relied on Clauses 1.7 (No disadvantage – Non reduction) and Clause 2.13.5 which clearly indicates that no employee will have their salary level or classification reduced merely as a result of the commencement and implementation of this Agreement. The Applicant also referred Clause 2.12.4 as further protection for employees in terms of continuing wage increases after the Agreement expiries, and if no new Agreement is agreed to replace it.

[42] The ALAEA criticised the Applicants material in regard to the BOOT on the basis that it provide only a limited comparison, without providing rosters. The ALAEA submitted that rosters vary markedly from month to month or even week to week.

[43] The ALAEA has not provided any detailed calculations to supports its view that the Agreement does not satisfy the BOOT. The ALAEA raised a number of issues in the course of the hearing and in a further written submission on 27 April. The Applicant provided further written submissions on 29 April after the hearing in response to a number of issues raised by the ALAEA in regard to public holidays attracting time in lieu, and the Sydney roster not continuing for 5 continuous afternoon and night shifts.

[44] The AWU provided its own comparison of the Agreement rates with the Award based on a four week roster. The Applicant provided a comprehensive response to the AWU calculations identifying issues including a failure to include payment of overtime, non-entitlement to paid meal breaks under the Award, the inclusion of night soil allowance when it is ordinarily not required to be paid, miscalculation of Saturday rates and Annual Leave loading, overtime under the Agreement being payable on the higher agreement rate and higher casual rates under the Agreement. I am satisfied on the basis of this material that the example of the employee as provided by the AWU would in fact be better off overall under the Agreement then under the Award.

[45] I have considered all of the submissions, and reviewed the clauses in the Agreement which are more beneficial and less beneficial then the Award. The loaded hourly rates are in the order of 50% above the classifications in the Award. I am satisfied on the basis of the material provided and submissions made that employees will be better off overall under the Agreement.

NES Issues

[46] The Unions have made submissions to the effect that two particular clauses going to personal leave and annual leave in the Agreement are inconsistent with the NES. The relevant section in this matter is section 186(2)(c) of the Act. That section provides that I must be satisfied, among other things, that:

“the terms of the agreement do not contravene section 55...”

[47] Section 55(1) of the Act provides that the Agreement:

“must not exclude the National Employment Standards or any provision of the National Employment Standards”

[48] Pursuant to s.55(7) of the Act a term that is permitted by s.55(4) or (5) does not contravene s.55(1). Section 55(2) also provides that an enterprise agreement may include a term if Part 2-2 of the Act (which deals with the NES) expressly permits the term to be included.

[49] The question for my consideration then becomes: do the clauses contravene section 55 of the Act in that they exclude a provision of the NES?

[50] In Canavan Building Pty Ltd 4 the Full Bench said in respect of “exclude”:

“It is not necessary that an exclusion for the purpose of s.55(1) must be constituted by a provision in the agreement ousting the operation of an NES provision in express terms. On the ordinary meaning of the language used in s.55(1), we consider that if the provisions of an agreement would in their operation result in an outcome whereby employees do not receive (in full or at all) a benefit provided for by the NES, that constitutes a prohibited exclusion of the NES.” 5

The objections

[51] Clause 2.18.3 of the Agreement provides that in relation to personal leave an employee:

“...must personally notify (by telephone) their supervisor/manager (or another person nominated by the supervisor) at least 6 hours prior to the beginning of rostered hours, unless it is not reasonably practical to do so, stating the type of leave and the likely duration of the absence. SMS, text or e-mail notification is usually deemed not to be an acceptable means of contact.”

[52] As I understand the Union’s position in relation to this clause is that the NES does not prescribe an amount of notice to be given in respect of personal leave and the requirement in the Agreement to give “at least 6 hours” notice is said to be contrary or detrimental to the notice requirements in the NES.

[53] The ALAEA submits that the NES provides for enterprise agreements to include a term relating to the kindof evidence required but the NES does not expressly provide for enterprise agreements to include terms regulating the amountof notice required. The ALAEA submits that the maxi expressum facit cessare tacitum applies (the express mention of something tends to exclude that which is not mentioned).

[54] ALAEA also raises practical difficulties with the application of a clause that stipulates a minimum time for notifying an employer of personal leave. For example, if an employee was rostered to start work at 7am and woke up unfit for work (for example because of a serious cold) the employee would, it is submitted, have been required to wake at 1am and assess whether to access personal leave.

[55] Clause 2.18.2(e) of the Agreement provides that in relation to annual leave the employer:

“...may direct an Employee to take annual leave by giving 4 weeks’ notice.”

[56] The Modern Award provides that a direction to an employee to take annual leave can only occur on 4 weeks’ notice where more than 8 weeks leave is accrued.

[57] The AWU submits that this clause was not identified by the Employer as being detrimental in its declaration in support of the Agreement.

[58] ALAEA submits that this clause may be contrary to the NES in that the requirement to take leave “may often not be reasonable”.

[59] In response to the objections the Applicant initially advised in its further submissions in response to the objection concerning Clause 2.18.2(e) that the clause can be amended or an undertaking provided to include the words “where more than eight weeks leave is accrued”.

Interaction of NES and Agreement terms

[60] The Act provides for interaction between the terms of the NES and industrial instruments, including enterprise agreements. Section 55 of the Act provides that an enterprise agreement must not excludethe NES or any provision of the NES. Section 55 also relevantly provides for the inclusion of terms in addition to the NES.

[61] A term that is permitted by s.55(4) does not contravene s.55(1).

[62] Section 56 of the Act provides that a term of an enterprise agreement that contravenes s.55 has no effect to the extent that it contravenes s.55.

[63] What is clear from s.55 is that an enterprise agreement can contain terms that are expressly permitted by Part 2-2 of the Act (the part dealing with the NES) and may also include terms that are ancillary or incidental to the operation of an entitlement under the NES or that supplement the NES. A term that is ancillary or incidental or that is supplementary to the NES may only be included to the extent that it is not detrimental to an employee when compared to the NES.

Conclusion: Personal Leave

[64] The notice requirement that an employee must give of the taking of personal/carer’s leave is in s.107(2) of the Act as follows:

“(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.”

[65] Section 107(5) permits an enterprise agreement to include a term relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave.

[66] So far as the ALAEA submits that the NES does not expressly permit an enterprise agreement to include a term in relation to the amount of notice required for personal leave, I agree; the NES does not expressly do so. However, so far as the ALAEA submits that the absence of an express permission of such a term is an indication that such a term is not permitted is not consistent with s.55 of the Act.

[67] Section 55 of the Act does not require that before an enterprise agreement contains a term related to the NES it must expressly be allowed or provided for by Part 2-2. Section 55 allows for terms that are not expressly permitted by Part 2-2 but are otherwise ancillary or incidental or supplementary to the NES; so far as they are not detrimental when compared to the NES.

[68] ALAEA relies upon Commissioner Ryan’s decision in Barlina Pty Ltd [2014] FWC 8887. The clause in consideration in that matter provided:

“Employees are required to give notice of absence from work due to personal illness or injury. The notice must be given prior to the start of the shift on the day of the absence or as reasonably practicable unless the circumstances are beyond the Employee’s control.”

[69] Commissioner Ryan accepted that s.107 of the Act did not permit a term in an enterprise agreement that dealt with the amount of notice required in respect of personal leave. Commissioner Ryan noted that enterprise agreements are able to include terms that are ancillary or incidental or supplementary to the NES. An undertaking was accepted by Commissioner Ryan to the effect that the clause above was deleted and replaced with the notice requirements in the NES. Commissioner Ryan made no finding, and was not asked to find, whether the term did contravene the NES.

[70] Barlina does not assist the ALAEA in this matter. So far as I can tell from the Decision of Commissioner Ryan, the Applicant did not press the clause and offered an undertaking, which was accepted. Commissioner Ryan made no finding about whether the clause as originally included was permitted or contravened section 55 of the Act; Commissioner Ryan simply raised a concern about the clause, which was addressed.

[71] What clause 2.18.3 requires is that an employee mustprovide notice at least 6 hours prior to the start of a shift unless it is not reasonably practicable to do so. Clause 2.18.3 would not require an employee to notify of an absence of personal leave at least 6 hours prior to the start of a shift where it was not reasonably practicable to do so. I do not consider that clause 2.18.3 of the Agreement is detrimental when compared to the NES in that clause 2.18.3 does not lead to a situation, on this construction, where an employee would be entitled to personal leave under the NES but not under the Agreement.

[72] Section 107(2)(a) of the Act requires an employee to give notice as soon as practicable. Under section 107 of the Act, there may be circumstances where an employee would be required to notify an employer 6 hours or more before the start of a shift that they would be taking personal leave; where it was practicable to do so. For example, if an employee was rostered to start work at 9am on Monday but broke their leg on a Saturday, was released from hospital at lunch time on Saturday, and it was practicable to do so, the employee would be required under section 107(2)(a) of the Act to notify their employer that they would be taking personal/carer’s leave at that time.

[73] The example provided in Note 3 to section 55(4) of the Act is of assistance. That note indicates that a term of an enterprise agreement would not be permitted as a supplementary, ancillary or incidental term if it required an employee to give more notice than that required by section 74 of the Act for an employee to take parental leave. Section 74 actually prescribes that the notice period required for the taking or parental leave is 10 weeks or as soon as practicable. Section 74 actually specifies a maximum notice period and any agreement term that requires a period of notice greater than this would not be permitted by section 55(4) of the Act. Presumably this note is predicated on the term being detrimental to an employee when compared with the entitlement under the NES. 6

[74] The situation in this matter is not analogous to that provided for in the note to section 55(4). The NES provisions in respect of personal leave do not stipulate a maximum period of notice in respect of personal leave.

[75] I do not think it can be concluded that the clause contravenes the section 55 of the Act. Clause 2.18.3 does not exclude a provision of the NES in that it does not, in its operation, result in an outcome whereby employees do not receive a benefit provided for by the NES.

[76] ALAEA’s concerns regarding the practicality of such a clause are not a matter that I am entitled to take into account in considering an application for approval. The clause either contravenes the NES or it does not. Any concerns regarding the application of personal leave may entitle the parties to pursue a dispute through the appropriate means.

Conclusion: Annual Leave

[77] ALAEA submits that clause 2.18.2(e) of the Agreement is contrary or detrimental to the NES. ALAEA refers toCommissioner Ryan’s Decision in Metalform Structures Pty Ltd [2014] FWC 5439 and Fenner Dunlop Australia Pty Ltd [2014] FWC 6189.

[78] It is clear that Part 2-2 permits an enterprise agreement to include a term requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable. The question is, is clause 2.18.2(e) a term that is permitted by section 93(3)?

[79] Clause 2.18.2(e) has no requirement that a direction to take annual leave be reasonable. Section 93(3) of the Act permits a term requiring an employee to take leave in particular circumstance, but only if the requirement is reasonable.

[80] The Award does allow for an employer to direct an employee to take annual leave by giving at least four weeks’ notice so long as the employee has eight week leave accrued. This clause is consistent with the way in which directions to take annual leave have been dealt with by the Commission and its predecessors, most notably that the default position is that annual leave is to be taken at a time agreed and that the right of an employer to direct an employee to take annual leave is normally limited to particular circumstances (e.g. to deal with excessive leave accruals or during a shutdown).

[81] A blanket requirement that an employee take annual leave at the direction of an employer, so long as a minimum amount of notice is given, is not a reasonable requirement. There is no evidence before me that would establish that it would be reasonable in the particular circumstances of this employer.

[82] I will consider any undertaking that may be offered by the employer in this regard. I note that the Applicant has foreshadowed an undertaking at paragraph 22 of its submissions of 24 March 2016, I would be amenable to such an undertaking, but I will consider undertakings when they are provided in formal terms. I request that if the Applicant intends to propose an undertaking it do so by Wednesday 18 May 2016. I remind the Applicant that in accordance with section 190(4) of the Act the Commission must not accept an undertaking unless the Fair Work Commission has sought the views of each person who the Commission knows is a bargaining representative, which in this case includes the AWU and the ALAEA.

COMMISSIONER

 1   McDermott Australia Pty Ltd [2016] FWCFB 2222

 2   Applicant’s submissions dated 24 March 2016, paragraphs 24 to 36.

 3   Application for Approval, attachment G.

 4   [2014] FWCFB 3202.

 5 Ibid at [36].

 6 See Fair Work Act 2009 (Cth), s 55(4).

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