Carter and Spencer Nth Qld Pty Limited
[2009] FWA 352
•24 SEPTEMBER 2009
[2009] FWA 352 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/10988)
COMMISSIONER WHELAN | MELBOURNE, 24 SEPTEMBER 2009 |
Application for approval of a single-enterprise agreement – Carter and Spencer Nth Qld Pty Limited Collective Agreement – requirements of the Act.
[1] This is an application by Carter and Spencer, North Qld Pty Limited for the approval of a single-enterprise agreement under section 185 of the Fair Work Act 2009.
[2] The application is accompanied by a statutory declaration by Stacey Reynolds (Group Services Manager). In relation to question 3.1, ‘Please identify all relevant awards or notional agreements preserving State awards to be used for the purposes of the no-disadvantage test’ the deponent has responded ‘N/A’ and in response to question 3.2, ‘Please identify any awards that have been determined by FWA, prior to the lodging of the application for approval of the agreement, to be a designated award in relation to an employee or class of employees’ the deponent has also answered ‘N/A’.
[3] The declaration described the kind of work covered by the agreement as ‘Warehousing – fresh fruit distribution’. The work to be covered by the agreement is conducted at the company’s premises in Townsville and involves receiving, warehousing and assembling product ordered by the Coles Group Ltd for delivery to their retail outlets.
[4] Under the provisions of Part 2 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 an enterprise agreement made during the bridging period must pass a no disadvantage test as set out in Division 2 of that Part. In order to determine if an agreement passes that test it is necessary to consider if the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more employees.
[5] Clause 8 of Division 2 provides that where an application for approval of an enterprise agreement is made and there is no relevant general instrument (as defined in 5(2)) in relation to an employee or class of employees to be covered by the agreement, Fair Work Australia must determine that an award is a designated award for the purposes of applying the no disadvantage test if it is satisfied that the requirements of that clause are met. For those purposes a relevant instrument may be a State award, which immediately before the reform commenced, would usually have regulated the kind of work performed by employees to be covered by the agreement.
[6] Following correspondence with the applicant and taking into consideration the kind of work performed by the employees to be covered by the agreement I have determined to designate the Storemen and Packers Award – Northern and Mackay Division 2003 1– an award of the Queensland Industrial Relations Commission – as the designated award for the purposes of Division 2 of Part 2 of Schedule 7.
Requirements for approval
[7] The application was lodged on 30 July 2009, which given the statutory declaration states that the agreement was made on 16 July 2009, is 14 days after the agreement was made (s.185(3)). The application is accompanied by a statutory declaration by Stacey Reynolds, on behalf of the employer. There is also what purports to be a statutory declaration by an employee organisation in support of the application although this is clearly not made on behalf of an employee organisation and is signed by an employee of the company.
[8] Section 186(1) requires that for an agreement to be approved it must meet the requirements set out in section 187. There do not appear to be any issues raised in this matter which relate to that section.
[9] Section 186(2) requires Fair Work Australia to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. Section 188 sets out when an enterprise agreement has been genuinely agreed to by the employees. The first of these is that the employer has complied with subsections 180(2), (3) and (5).
[10] Section 180(2) provides:
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
[11] The employer’s statutory declaration states:
All employees were given a full copy of the agreement and summary pages of specific areas changed as well as a ballot paper.
All employees were involved in the negotiation process at regular meetings, which were posted on or near the time clock/notice board.
[12] The employer was requested to provide a copy of any material provided to employees explaining the terms of the Agreement. Produced by the employer was a document dated 27 July 2009 headed ‘Change of operational information overview’ which summarises the content of the agreement, and a further document headed ‘Minutes from NQ Certified Agreement Negotiations: Summary for Shift Meeting – 10.30 am Tuesday 16 July 2009’.
[13] It would appear that this meeting occurred on the same day as the ballot papers were given to employees.
[14] Section 180(3) provides:
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
[15] The employer has responded:
All employees were notified of the voting process by their supervisor and memos posted on or near their time clock/notice board. All employees were informed that the voting process would be a secret voluntary ballot vote. A roster would be kept for attendance and confirmation of voting, no names would be recorded on the voting paper.
[16] Section 180(5) provides:
Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
[17] The employer has responded:
All employees were involved in the bargaining process, they were given all relevant information outlining how the process was to start all employees wished to conduct all negotiation collectively, employees were advised if they wish to contact or make present any representative of their choice, there are at present no non-English speaking employees, employed on site, all employees under 18 were informed that their legal guardian would need to review and authorise their vote.
[18] Section 188(a)(ii) requires that the employer has complied with subsection 181(2). That subsection provides:
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
. . .
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given)
[19] The employer’s statutory declaration states that the date the employees were provided with the notice under section 173(1) was 2 July 2009. If, as stated, the agreement was made on 16 July 2009 then the employer has not complied with section 181(2) and by virtue of section 188(a)(ii) the employees cannot have genuinely agreed to the enterprise agreement and I cannot therefore be satisfied that the requirements of section 186(2)(a) have been met.
[20] Further having considered the content of the Agreement, for the purposes of applying the no disadvantage test, on the basis of the roster provided by the employer, the agreement would fail that test with respect to the following: Span of hours, casual loading, penalty rates, overtime rates, shift loading, weekend work, annual leave loading and overtime meal allowance.
[21] While the rates in the agreement are above those contained in the reference instrument, when the applicable penalty/overtime loadings are applied to the rostered hours provided the agreement is less favourable than the award.
[22] For these reasons the application does not meet the requirements of the Act and the application must be dismissed.
COMMISSIONER
1 AN140278 Storeworkers and Packers’ Award – Northern and Mackay Division 2003.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR989401>
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