B&D Australia (A Division of DuluxGroup (Australia) Pty Ltd)

[2014] FWC 9350

[2014] FWC 9350 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

B&D Australia (A Division of DuluxGroup (Australia) Pty Ltd)
(AG2014/10300)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 23 DECEMBER 2014

Application for approval of the DuluxGroup (B&D Revesby) - Enterprise Agreement 2014.

[1] An application has been made by Eptec Pty Ltd for approval of the DuluxGroup (B&D Revesby) - Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[4] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the Act as it did not include a full name and address of each of the employer and employee representatives who signed the agreement as required by Regulation 2.06A.

[5] As the requirements of s.185(2)(b) have not been complied with the application is not a valid application. The application is therefore dismissed.

Observations

[6] Clause 22 provides that employees will forfeit an amount of pay to the employer in both the circumstance where the employee fails to give the employer the required period of notice on termination and where the employee owes money to the employer. I refer the employer to the decision in Hydro Chem Pty Ltd, [2014] FWCA 5163.

[7] Clause 32(2) provides that:

“An employee on personal/carer’s leave must advise their immediate Supervisor as early as possible of the reason for the absence and an estimate of its duration. Payment is subject to the employee meeting the notice and evidentiary requirements outlined herein.”

[8] The clause cannot operate and is not permitted in an enterprise agreement to the extent that it purports to set notice requirements for an employee entitled to personal/carer’s leave or compassionate leave.

[9] Section 107 of the Act provides that:

“107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(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.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[10] The obligations on an employee to give notice to their employer in relation to personal/carer’s leave or compassionate leave are exhaustively set out in s.107(1).

[11] As is very clear from s.107(5) an enterprise agreement “may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave”. However, s.107(5) does not permit an enterprise agreement to alter the notice requirements set by s.107(1).

[12] Further, s.55(4) provides a qualified permission for an enterprise agreement to contain terms which “are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards. The critical qualification is that any such ancillary or incidental terms will not have a detrimental effect on an employee.

[13] Whilst clause 32(2) may be an ancillary or incidental term, it clearly has a detrimental effect on an employee as the purpose of the clause is to permit the employer to not pay an employee for personal/carer’s leave.

[14] Clause 33 relates to the entitlement to compassionate leave. The relationships cited in the clause do not constitute all the relationships which make up “immediate family” under the Act.

[15] Clause 34 states in relation to Parental Leave as follows:

“If an Employee is an ongoing Employee or a long term casual Employee, they will be entitled to parental leave (maternity or adoption leave) in accordance with applicable legislation, and any applicable Company policy.” (emphasis added)

[16] The concern with the underlined wording is that the relevant company policy which is not incorporated into this Agreement and not known to the Commission, may operate to reduce an employee’s entitlement under the NES.

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