Application by Gerald Fanning
[2010] FWA 2388
•23 MARCH 2010
[2010] FWA 2388 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/14396)
COMMISSIONER LEWIN | MELBOURNE, 23 MARCH 2010 |
Fair Work Act Enterprise Agreement, AML Pty Ltd & AML Employees 2009-12.
[1] This decision concerns an application made by Gerald Fanning for approval of the Enterprise Agreement, AML Pty Ltd & AML Employees 2009 - 2012 (the agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) on 27 November 2009. The file was received in my chambers on 9 December 2009.
[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. The application is subject to the Agreement passing the no-disadvantage test contained in Item 4 of Schedule 7 of the Transitional Act.
[3] The reference instrument for the purposes of comparison in determining whether or not an Agreement passes the no-disadvantage test is the Security Employees (VIC) Award (AP796143CRV). On reading the terms of the terms of the Agreement and the reference instrument I became concerned that the Agreement did not pass the no-disadvantage test. However, Fair Work Australia may approve an enterprise agreement with undertakings pursuant to s.190 of the Act which is set out below:
“190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWA must seek views of bargaining representatives
(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.
[4] On 5 February 2010 I wrote to the applicant to express my concerns that the Agreement did not pass the no-disadvantage test including that the wage rates contained in the Agreement were less than those in the reference instrument and in relation to penalty rates, loadings and allowances.
[5] In response to my letter, on 11 February 2010, AML Pty Ltd filed an undertaking in the Tribunal in the following terms:
“PURSUANT to section 190 of the Fair Work Act 2009 AML Pty Ltd hereby undertakes that the Casual Rates clause of the Agreement shall be amended to ensure compliance with Section 186(2)(d) in terms of the better off overall test.
AML Pty Ltd give the undertaking the Agreement is only for the employment of casuals.”
[6] The Tribunal may only accept an undertaking pursuant to s.190 of the Act where it is satisfied that the undertakings do not result in substantial changes to the Agreement under s.190(3)(b) of the Act. In my view, the undertaking filed by AML Pty Ltd is general in nature and would require significant changes to the terms of the Agreement in order that the employees covered by the undertaking not be disadvantaged having regard to the no-disadvantage test prescribed by the Act. In Particular, the undertaking would seem to require changes to the terms of the Agreement, incorporating terms of the reference instrument, dealing with ordinary hours of work performed on the weekends, overtime, shiftwork allowances and allowances generally. In my letterI concluded that “the necessary changes would seem to be likely to lead to substantial changes in the Agreement and accordingly, having regard to s.190(3)(b) of the Fair WorkAct 2009, cannot be accepted”. On 22 February 2010 I wrote to Mr Fanning to express these concerns.
[7] In the letter of 22 February 2010, Mr Fanning was invited file any Submissions to satisfy me that the undertaking filed on 11 February 2010 would not result in substantial changes to the Agreement by 1 March 2010. On 24 February 2010 Mr Fanning requested an extension of time to file materials in response to my letter until 5 March 2010. An extension was granted accordingly. No materials have been filed in the Tribunal in response to my letter of 24 March 2010.
[8] The Agreement subject of this application does not, in my view, pass the no-disadvantage test. On what is before me the undertaking filed by AML Pty Ltd on 11 February 2010 is too general in nature and is likely to result in substantial changes to the Agreement. I am therefore either unable to and/or not inclined to exercise the discretion pursuant to s.190 of the Act to accept the Agreement with the undertakings offered.
[9] The application is refused.
COMMISSIONER
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