Cigweld Pty Ltd

[2014] FWC 8428

[2014] FWC 8428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cigweld Pty Ltd
(AG2014/8215)

COMMISSIONER RYAN MELBOURNE, 25 NOVEMBER 2014

Application for approval of the Cigweld Preston (Manufacturing) and National Union of Workers Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Cigweld Preston (Manufacturing) and National Union of Workers Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Cigweld Pty Ltd. The agreement is a single-enterprise agreement.

[2] I note that the Agreement has not been signed by the employee’s representative in accordance with Reg. 2.06A(2) which provides that:

“(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.

[3] The application for approval is dismissed on the basis that the Agreement was not signed as required by Reg. 2.06A(2).

Observations

[4] I make an observation on the agreement making process and several 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.

[5] In response to 2.5 in the Statutory Declaration declared by Ian Holm of Cigweld Pty Ltd (F17), the employer declares that a memorandum specifying the date, time and method of the vote was given to employees and displayed on notice board on 5 November 2014. A copy of that memorandum was not filed with this application. Further, in response to 2.8, the employer declares that voting commenced and concluded on 5 November 2014. It is clear from the F17 that employees were told of the time, place and method of voting on the same day as they actually voted on the Agreement. Given those declarations by Mr Holm, it would appear that employees were not given the requisite notice under the Act which is a pre-approval requirement which must be met before the employer can request employees vote on an enterprise agreement (s.181(1)).

[6] Clauses 14.3.1, 14.3.2 and 14.3.3 operate to define part time employment. When compared to the provisions of clause 13 of the Manufacturing and Associated Industries and Occupations Award 2010 (the Modern Award), the Agreement provides for a concept of part time employment which lacks some of the benefits of the Modern Award such as minimum engagement, agreement in writing on hours worked and payment for overtime.

[7] Clauses 32.3.1 and 32.3.2 provides as follows:

“32.3.1 Subject to this subclause the annual leave prescribed by this clause shall be exclusive of any of the holidays prescribed by this Agreement and, if any such holiday falls within an employee’s period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day, there shall be added to the period of annual leave time equivalent to the ordinary time which the employee would have worked if such day had not been a holiday.

32.3.2 Where a holiday falls as aforesaid and the employee fails without reasonable cause, proof whereof shall be upon him, to attend for work at their ordinary starting time on the working day immediately following the last day of the period of their annual leave the employee shall not be entitled to be paid for any such holiday.”

[8] Clause 32.3.2 operates to exclude a provision of the National Employment Standards (NES).

[9] Clause 34.4.4 contains a provision in relation to personal/carer’s leaves which requires an employee to give notice to the employer “within 24 hours of such absence”. The NES contains no such provision. The NES provides that notice is to be given as soon as is reasonably practicable, which may be after the commencement of the shift.

[10] Clause 37.1.4 contains provision for additional public holidays but qualifies the entitlement to additional public holidays by excluding that entitlement from any employee who is “covered by Federal Agreements”. Given that every employee covered by the Agreement is “covered by Federal Agreements” then no employee covered by the Agreement would be entitled to an additional public holiday. The clause appears to operate so as to exclude the entitlement to an additional public holiday provided for by s.115(b) of the Act.

COMMISSIONER

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