Clog's Bakery T/A Skala Bakery
[2010] FWA 2050
•12 MARCH 2010
[2010] FWA 2050 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/24356)
COMMISSIONER HAMPTON | ADELAIDE, 12 MARCH 2010 |
The Clog's Bakery Pty Ltd Bakers Collective Agreement (2009) – application for approval refused.
[1] An application has been made for approval of an enterprise agreement known as The Clog’s Bakery Pty Ltd Bakers Collective Agreement (2009) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Clog’s Bakery Pty Ltd T/as Skala Bakery. The agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] On 17 February 2010, I issued a comprehensive preliminary assessment of the application to the parties and sought further information and submissions. That assessment highlighted a number of apparent deficiencies with the process leading to the making of the Agreement and some significant concerns with the proposed agreement itself.
[4] The matter was then further considered by me following a conference with a representative of the applicant, Mr Jahnke, on 5 March 2010. At the conclusion of that conference I indicated that I was not able to approve the Agreement under the Act. In so doing, I indicated that I would subsequently issue reasons for that decision.
[5] Section 186 of the Act requires that in order to approve an enterprise agreement (not being a Greenfields agreement) an agreement must have been genuinely agreed to by the relevant employees.
[6] Section 188 of the Act also provides that for an enterprise agreement to be approved, Fair Work Australia must be satisfied that the agreement has been genuinely agreed to by the relevant employees having regard to specific statutory requirements. The relevant provisions of s.188(a)(ii) of the Act are set out below:
“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);
…
[7] Section 181 of the Act is in the following terms:
“181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[8] Section 173 of the Act requires that an employer who will be covered by a proposed enterprise agreement must take all reasonable steps to notify employees who will be covered by the agreement of the right to be represented by a bargaining agent. Section 181(2) of the Act, provides in effect that a request to vote or make the agreement cannot be effective for approval purposes where the vote occurs less than 21 days after the last notice of representational rights is given.
[9] At question 2.6 of the Form 17—Employer’s Declaration in Support for Approval of Enterprise Agreement (the Declaration), filed in the Tribunal, the employer declared that it first requested that the employees approve the agreement by voting for iton 14 November 2009. The s.173(1) notice of representational rights was provided to the employees on 1 December 2009 and this was clearly after the commencement of the voting. The declaration also cited the date that the agreement was made as being 17 December 2010, and whilst this would have been inside of the 21 day waiting period, subsequent information supplied by the parties has demonstrated a further fundamental problem with the employee endorsement process.
[10] Subsequent information provided to me has indicated that the parties purported to make their agreement under the previous Act 2 in June, September and November 2009. Due to a combination of the “speed” of the process under that legislation, concerns held by the then Workplace Authority about the proposed Agreement and the failure of the parties’ then representative (not Mr Jahnke) to actually lodge a subsequent application, the applicant simply attempted to use the earlier agreement and lodge it under this Act. This meant that although the notice of representational rights was provided in December 2009, none of the other steps contemplated by the Act were followed. This includes the fact that whilst the employees informally confirmed that they apparently wished the agreement “to continue”, there was no valid employee endorsement process for its making following the giving of the required notice under the Act. In reality, the Agreement was made before any of the relevant notice and other related statutory employee endorsement processes were attended to.
[11] As a result, the Agreement has not been genuinely agreed or made as contemplated by the Act and I do not consider that I have any power or discretion to attempt to correct the deficiency.
[12] Further, as the Agreement was clearly contemplated by the parties under the former legislation, it contains many problematic references to the former Act, does not contain some of the mandated provisions and, for reasons outlined in my earlier preliminary assessment, would not meet the no disadvantage test (the NDT) as required by Item 2 of Sch. 7 of the Transitional Act. Some of these content issues may be capable of being addressed by the giving of undertakings as contemplated by s.160 of the Act, however, the range and substance of those matters (including in particular the need to reduce the nominal life of the agreement from the current purported term of five years) would appear to be beyond the scope of such undertakings. 3
[13] There is also no suggestion that the employer seeks to rely on the public interest circumstances as provided by s.189 of the Act to overcome any NDT deficiencies, and there is no valid agreement in any event.
[14] In these circumstances, the Agreement cannot be approved and the application must be refused.
[15] In concluding, I would confirm my view that the parties here have not necessarily acted in a male fide manner. Rather, they have apparently been poorly served by a previous Advisor. In the circumstances, if they wish to further pursue an Agreement, they will need to follow the process as required by the Act and make a new application to Fair Work Australia. In so doing, they would be advised to consider the substantive issues raised in my earlier preliminary assessment and in addition, assess the requirements of the Better Off Overall Test 4 in the context of the relevant Modern Award as these are now applicable.
COMMISSIONER
Appearances:
N Jahnke for Clogs Bakery Pty Ltd.
Hearings (in conference):
2010.
Adelaide:
March 5.
1 Item 2, Part 1, of Schedule 2
2 Workplace Relations Act 1996 as preserved by the relevant transitional provisions.
3 The Tribunal may, after considering the views of the bargaining representatives accept undertakings which address concerns arising under ss.186 and 187 of the Act provided that are not likely to cause financial detriment to the employees under the Agreement or result in substantial changes to the agreed instrument – ss.190(3) and(4).
4 Section 193 of the Fair Work Act 2009.
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