Bradnam’s Windows and Doors Pty Ltd

[2014] FWC 8983

[2014] FWC 8983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bradnam’s Windows and Doors Pty Ltd
(AG2014/10192)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 15 DECEMBER 2014

Application for approval of the Bradnams Windows and Doors PTY LTD (Lyndhurst Victoria Manufacturing and Distribution Centre) and Australian Workers Union (Victorian Branch) Enterprise Agreement 2014-2016.

[1] An application has been made by Bradnam’s Windows and Doors Pty Ltd for approval of the Bradnams Windows and Doors PTY LTD (Lyndhurst Victoria Manufacturing and Distribution Centre) and Australian Workers Union (Victorian Branch) Enterprise Agreement 2014-2016 (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 an 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] I make the following observations as to the contents of the Agreement. These observations are not part of the decision to dismiss the application in this matter but are made to assist the parties if they wish to make an enterprise agreement and seek to have it approved by the Commission.

[7] Clause 9.3 of the Agreement relates to part-time employment and it states as follows:

“(a) A part-time employee means a permanent employee employed to work a regular number of fixed number of hours per week, not exceeding 38 hours.

(b) Part-time employees will receive proportional entitlements to any applicable allowances, annual leave, personnel/carer's leave, long service leave and compassionate leave calculated on the basis of ordinary hours worked.

(c) Part-time employees will be engaged for a minimum shift of 3 consecutive hours.”

[8] The provisions in clause 9.3 are less beneficial to employees than the provisions of clause 13 of the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) which provides as follows:

“13. Part-time employment

13.1 An employee may be engaged to work on a part-time basis involving a regular pattern of hours which average less than 38 ordinary hours per week.

13.2 A part-time employee must be engaged for a minimum of three consecutive hours a shift. In order to meet their personal circumstances, a part-time employee may request and the employer may agree to an engagement for less than the minimum of three hours.

13.3 Before commencing part-time employment, the employee and employer must agree in writing:

(a) on the hours to be worked by the employee, the days on which they will be worked and the commencing and finishing times for the work; and

(b) on the classification applying to the work to be performed in accordance with Schedule B.

13.4 The terms of the agreement in clause 13.3 may be varied by consent in writing.

13.5 The agreement under clause 13.3 or any variation to it under clause 13.4 must be retained by the employer and a copy of the agreement and any variation to it must be provided to the employee by the employer.

13.6 Except as otherwise provided in this award, a part-time employee must be paid for the hours agreed on in accordance with clauses 13.3 and 13.4.

13.7 The terms of this award will apply pro rata to part-time employees on the basis that ordinary weekly hours for full-time employees are 38.

13.8 A part-time employee who is required by the employer to work in excess of the hours agreed under clauses 13.3 and 13.4 must be paid overtime in accordance with clause 40—Overtime.

13.9 Public holidays

(a) Where the part-time employee’s normal paid hours fall on a public holiday prescribed in the NES and work is not performed by the employee, such employee must not lose pay for the day.

(b) Where the part-time employee works on the public holiday, the part-time employee must be paid in accordance with clauses 32.4(e), 36.2(f), 37.5 and 40.9.”

[9] Clause 20.1 provides that employees will forfeit an amount of pay to the employer if the employee fails to give the employer the required period of notice on termination. I refer the employer to the decision in Hydro Chem Pty Ltd, [2014] FWCA 5163.

[10] The Agreement does not contain a consultation term which meets the requirements of s.205(1) and (1A) of the Act.

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