Becker's Newsagency Pty Ltd Enterprise Agreement 2009
[2010] FWA 415
•28 JANUARY 2010
[2010] FWA 415 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/23459)
Manning Valley Newsagency Pty Ltd Enterprise Agreement 2009
(AG2009/23460)
T & S Amato Pty Ltd Enterprise Agreement 2009
(AG2009/23463)
Newton Nominees Pty Ltd Enterprise Agreement 2009
(AG2009/23623)
Paesler Trading Pty Ltd Enterprise Agreement 2009
(AG2009/23624)
A & N Hill Pty Ltd Enterprise Agreement 2009
(AG2009/23557)
JBG Design & Development Pty Ltd Enterprise Agreement 2009
(AG2009/23558)
Scion NSW Pty Ltd Enterprise Agreement 2009
(AG2009/24323)
Konsip Pty Ltd Enterprise Agreement 2009
(AG2009/24655)
COMMISSIONER MCKENNA | SYDNEY, 28 JANUARY 2010 |
Application for approval of a single-enterprise agreement by the Australian Newsagents Federation
[1] These applications for the approval of single-enterprise agreements, made pursuant to s185 of the fair Work Act 2009, have all been made by individual employers operating as newsagents. In each matter, the Australian Newsagents Federation Ltd (“ANF”) is named as the representative of the applicant employer.
[2] On reading the materials filed in support of the applications and the enterprise agreements themselves in matters numbered AG2009/23459, AG2009/23460, AG2009/23463, AG2009/23623, AG2009/24323 and AG2009/23624, I was concerned about various aspects of them. In view of those concerns, I listed those matters on 21 January 2010 to hear anything that might be put on behalf of the applicants, particularly in relation to the preferred hours clauses that is common to each application (having asked, through my Acting Associate, that the ANF be alerted to this particular concern). On the hearing of the applications, Ms T Harris of the ANF appeared by telephone.
[3] I declined to approve the six applications listed that day namely, AG2009/23459, AG2009/23460, AG2009/23463, AG2009/23623, AG2009/24323 and AG2009/23624 and now publish my reasons thereto.
[4] Since the hearing on 21 January 2010, I have been allocated three additional applications in which the ANF was the applicants’ representative. Those more recently allocated matters give rise to relevantly identical considerations to the initial applications. Consistently with the approach to the first five matters listed on 21 January 2010, I propose now also to dismiss those applications, namely AG2009/23557, AG2009/23558 and AG2009/24655.
THE FORMULAIC DECLARATIONS
[5] I begin by noting my concern that the applications are formulaic in their responses to information required in the statutory declarations that comprise the “Employer’s declaration in support of application for approval of enterprise agreement” (Form F17). For example, in each Form F17, the following bolded text is identically-worded in each statutory declaration:
as to cl 2.3:
2.3 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to ensure that the relevant employees were given, or had access to, the written text of the agreement and any other material incorporated by reference in the agreement.
All employees were advised at least 7 days before the start of the voting process that the Enterprise Agreement, Explanatory Sheet and Australian Fair Pay & Conditions Standard were available at the workplace for them to view. Employees also signed and dates a confirmation sheet advising the date they were advised of the access to the documents. Employees were also advised at least 7 days before the ballot of the date of the ballot.
as to cl.2.4:
2.4 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to notify all relevant employees of the time and place at which the vote was to occur and the voting method to be used. (s.180(3))
On the day the agreement, explanatory sheet and Australian Fair Pay and Conditions Standard were made available employees were advised in writing and verbally of the ballot date. This was at least 7 days before the ballot was held. Employees also confirmed acknowledgement by signing a confirmation sheet.
and as to cl.2.5:
2.5 Please specify the steps taken by the employer to explain the terms of the agreement, and the effect of those terms, to relevant employees (s.180(5). Note: your answer must include information on the manner in which the explanation took account of particular circumstances and needs of relevant employees (For example, where the employees were from a non-English speaking background, were young employees or did not have a bargaining representative)
Employees had access to explanatory sheet during working hours at least 7 days before the vote. Employer explained to Employees content of agreement. Employees were advised they could ask the employer any questions about the content of the agreement during this period. All reasonable steps were taken to ensure that the terms of the agreement and the effect of those terms were explained to employees
[6] I am bound to say that I am concerned about the formulaic approach to the responses provided in relation to each of the Forms F17. The declarations do not contain specific information such as would allow a proper consideration of whether certain mandatory prerequisites for approval have, in fact, been met - notwithstanding the submissions by Ms Harris about her personal endeavours to ensure the prerequisites for approval were met in relation to some employers and their employees. In circumstances where template answers have been used uniformly in this manner in the Forms F17 by the ANF/employer applicants, I could not be requisitely satisfied, without more information (perhaps by way of supplementary statutory declarations, perhaps by way of the tender of the signed/dated acknowledgements from the employees referred to in the template answers) that various of the prerequisites for approval have, in fact, been met in relation to the various, individual applications. These are matters which ought properly, in my view, be the subject of an individualised response by the individual declarant of each statutory declaration. Absent any other considerations, I consider it unsatisfactory that a set-piece, template declaration, purporting to meet certain mandatory requirements of the Act, should be lodged in support of applications for unrelated workplaces.
[7] Putting aside my concerns about the formulaic content of the employers’ declarations in support of the applications for the approval of the agreements (being concerns which, potentially at least, may have been addressed on the provision of specific, additional information), the agreements cannot, in my assessment, be approved given their common provisions concerning “preferred hours”. The provisions concerning preferred hours are in the following terms:
Preferred Hours
(a) In accordance with the No Disadvantage Test Policy Guide clause on Preferred Hours – Collective Agreements, employees may seek to work preferred hours of work.
(b) If an employee has a genuine preference to work hours that suit his or her personal, study and/or family circumstances, the employee shall initiate his or her choice by completing the Preferred Hours of Work Request Form (see Schedule 2). If a written request to work preferred hours is made, the nominated hours will constitute ordinary hours of work for which the Employee will be paid at his or her ordinary hourly rate of pay (as per Column B in Schedule 1)
(c) If an employee has a genuine preference to work voluntary additional hours the employee may negotiate with the employer to work those additional hours (as defined in Clause 26.1). Employees who choose to work voluntary additional hours shall initiate his or her choice by completing the Preferred Hours of Work Request Form (see Schedule 2). If a written request to work preferred hours is made, the nominated hours will constitute ordinary hours of work for which the Employee will be paid at his or her ordinary hourly rate of pay in Schedule 1.
(d) The hours of work are determined by the employer in consultation with individual employees taking into account the personal, study or family commitments of individual employees.
[8] The inclusion of preferred hours in agreements has been the subject of consideration in a number of recent decisions of this Tribunal, including Bendy Q P/L t/s Jamaica Blue Knox City & Ors[2009] FWA 1869 and Bupa Care Services, ANF and HSU Enterprise Agreement 2009 [2010] FWA 1869. In Bendy Q, Whelan C in said this in relation to the preferred hours arrangements:
[41] It is not, in my view, appropriate nor does it pass the no disadvantage test, to include in an agreement a general provision which removes penalty provisions from the employees’ rate of pay on the basis that they have nominated certain hours during which they are available to work. If the employer requires work to be performed during those hours and the employee is able to perform that work then that is a normal incident of employment and not a special arrangement which might be covered by either section 65 or the type of arrangements covered by section 203. It is notable that if employees were to be engaged under these ‘preferred hours’ arrangements they would be paid less than if the relevant award applied.
[9] To similar effect, in declining to approve the Bupa Care Services, ANF and HSU Enterprise Agreement 2009, Smith C noted:
[17] Against this background, it can be seen that this proposed clause represents a cost saving rather than a benefit. It would be difficult to suggest that an employee would see the benefit in being paid less than that which would ordinarily apply. In short, it is the gift of employment that the employer is offering provided it is at a discounted rate from the safety net. This is a concept which, in my view, has far reaching implications for the operation of the safety net of wages and conditions.
Ms Harris submitted the preferred hours arrangements under the enterprise agreements were entirely appropriate, principally because they allowed a better balancing of work and personal life. In this respect, she adverted to examples of which she was personally aware, such as to allow an employee to play tennis on a day of the employee’s choosing. She further submitted forcefully the preferred hours arrangements are intended to be truly voluntary; and, in this respect, added there could be no disadvantage when the result was a “happy workforce”. Ms Harris did not relevantly address the question of the financial disadvantage that would arise inexorably under these arrangements.
[10] I respectfully concur with the approach generally to preferred hours adopted in Bendy Q P/L t/s Jamaica Blue Knox City & Ors and Bupa Care Services, ANF and HSU Enterprise Agreement 2009. To the extent the agreements contain preferred hours arrangements, they, self evidently, fail the no disadvantage test given the removal of entitlement to higher rates of remuneration that otherwise would attach to the performance of work during those hours. So much is clear from the comparative rates.
[11] The applications must be declined, in my opinion, on the basis of the preferred hours provisions alone - putting aside my more general concerns about the formulaic approach to the responses in the various Forms F17 filed in support of these applications for approval.
[12] The proceedings are concluded.
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