Caravan Park Management Services (SA) Pty Ltd
[2010] FWA 2028
•11 MARCH 2010
[2010] FWA 2028 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/3345)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 11 MARCH 2010 |
Caravan Park Management Services (SA) Pty Ltd Enterprise Agreement 2010.
[1] On 15 January 2010, Caravan Park Management Services (SA) Pty Ltd (CPMS) lodged an application for approval of the Caravan Park Management Services (SA) Pty Ltd Enterprise Agreement 2010, pursuant to section 185 of the Fair Work Act 2009 (the Act).
[2] In the employer's declaration (Form F17) CPMS advised that it had three casual employees. These persons co-signed the agreement. In this declaration, CPMS advised that the employees were provided with a notice of employee representative rights on 12 December 2009, and that the agreement was made on 11 January 2010.
[3] On 29 January 2010, I issued preliminary findings in which I sought clarification of the agreement making process and additional information relative to the application of the "Better Off Overall Test" (the BOOT).
[4] CPMS responded to those preliminary findings on 8 February 2010. In this correspondence, it advised that the agreement, in its final form, was given to its employees on 4 January 2010. CPMS provided classification definitions and a revised schedule of wage rates with variations to casual wage rates in a form which I took to be a proposed undertaking.
[5] I subsequently advised that I would provide an extended opportunity to consider the agreement making process and the application of the BOOT at a hearing on 5 March 2010.
[6] On 26 February 2010 CPMS provided further information in the form of another variation of the wages schedule with additional casual rates of pay.
[7] The hearing on 5 March 2010 considered three principal issues. Firstly, CPMS advised that its employees had in fact received the agreement on 12 December 2009 and that it had nominated the date of 4 January 2010 because that was the day upon which the corporate status of CPMS was confirmed.
[8] Secondly, CPMS advised that the three nominated "employees" were persons with whom it had reached an agreement to offer casual employment consequent upon the approval of this agreement, but that these persons had not, at this time, yet commenced work.
[9] Thirdly, CPMS provided clarification of the proposed revised rates of pay on the basis that these revisions did not affect the three "employees" and that, with these changes, the agreement met the BOOT.
Findings
[10] The second of these issues is initially fundamental to the application. Part 2-4 of the Act establishes a framework which allows employers and employees to bargain for, and reach agreements. Section 170 defines employees and employers for this purpose in the following terms:
“In this Part, employee means a national system employee, and employer means a national system employer.”
[11] Sections 13 and 14 relevantly state:
“13 Meaning of national system employee
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.
14 Meaning of national system employer
(1) A national system employer is:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.”
[12] Division 2 of Part 2-4 details the capacity of employers and employees to make enterprise agreements. Section 172 states:
“172 Making an enterprise agreement
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;
(d) how the agreement will operate.
Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.
Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.
Single-enterprise agreements
(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b) with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and
(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.
Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).
…”
[13] Section 172(2)(b) represents the only specific capacity for an entity which is not currently an employer, to enter into a collective agreement at a time before employees are actually engaged. Such a Greenfields agreement option specified in this section represents a particular type of agreement made between an entity which is yet to employ, and one or more unions. Clearly, the agreement at issue here is not a Greenfields agreement.
[14] CPMS asserts that, notwithstanding that it has not yet actually engaged any of the three nominated "employees", it has entered into an employment relationship with those persons, conditional upon this agreement being approved.
[15] I have no doubt that CPMS intends to employ these three persons on a regular casual basis at some stage in the future, but I am unable to conclude that, at the present time, they are actually employed, or that they were employees at the time at which they endorsed the agreement proposal. Accordingly, there is no capacity for CPMS or the three nominated persons to reach an agreement of this nature until, or unless, there is an actual employment relationship. In this respect, the Act is quite different to the Australian Workplace Agreement provisions applicable in earlier legislation.
[16] Given this conclusion, the application must be refused.
[17] A final comment is appropriate in that, if CPMS actually engages employees, and then seeks to enter into a new agreement, care should be taken to ensure that the agreement put to its employees meets the requirements of the BOOT. The fact that multiple undertakings were proposed relative to this agreement diminishes the extent to which it could truly be regarded as a document which was agreed between the parties.
SENIOR DEPUTY PRESIDENT
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