Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2017] FWC 5197
•9 OCTOBER 2017
| [2017] FWC 5197 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2017/3304)
| Commissioner Wilson | MELBOURNE, 9 OCTOBER 2017 |
Application for approval of the Tricky’s Air Installations Pty Ltd t/a Tricky’s Air Installations Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 – 2019 – not approved.
An application has been made for approval of an enterprise agreement known as the Tricky's Air Installations Pty Ltd t/a Tricky's Air Installations Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019 (Agreement). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant). The Agreement is a single enterprise agreement.
On the 29 August 2017, the Commission sent correspondence to the Applicant advising them that upon review of the application the Commissioner had a number of concerns as to whether the Agreement satisfied the requirements of the Fair Work Act 2009 (Act). The correspondence stated:
1.The Commissioner notes there are a number of questions in the Form F17 Statutory Declaration which require more information. The Commissioner has requested that additional information be provided to the following:
·Q2.3 does not state how or in what form the Notice of Employee Representational Rights was distributed to employees in accordance with s.173, s.174 of the Act and Sch 2.1 of Fair Work Regulations 2009 (Regulations);
·Q2.5 does not state how employees were informed of the vote details in accordance with s.180(3) of the Act; and
·Q2.8 does not provide a notification date in order to satisfy s.173(3) of the Act.
2.The Commissioner notes that the Agreements personal/carer’s leave provision, at Cl.46, is silent on the entitlement for part time employees. You may wish to provide an undertaking or submissions addressing this issue.
3.The Commissioner notes that the Agreement provides a penalty for shift work at Cl.42 however, does not provide a definition of a shift worker for the purpose of the National Employment standards (NES) or the additional weeks annual leave as per the NES. You may wish to provide an undertaking or submissions addressing this issue.
The Applicant provided a response via email on 31 August 2017, addressing the issues as follows:
“Hi,
Thank you for your email below regarding AG2017/3303.
With regards to the points raised by Commissioner Wilson, I provide the following commentary which I hope will be of assistance:
1. F17:
a. Q2.3: A hard copy of Notice of Employee Representational Rights was distributed to employees in person.
b. Q2.5: Employees were informed of the vote details in person.
c. Q2.8: The date of notification time is 26.04.2017.
2. Regarding clause 46, it is our understanding that this clause, by reference to ‘permanent’ employees, applies also to part-time employees. If, upon further consideration, the Commissioner’s view remains, the Union could seek an undertaking from the employer that this provision either does not operate to the exclusion of part-time employees or alternatively confirming that, notwithstanding clause 46, part-time employees shall be entitled to personal/ carers leave in accordance with the National Employment Standards and Fair Work Act 2009.
3. Regarding clause 42, it is our understanding that as per clause 5 of the Agreement it is to be read in conjunction with the Plumbing and Fire Sprinklers Award 2010. Clause 3.1 of this Award provides a definition for shift-worker which can be read in conjunction with clause 42 of the proposed Agreement, in particular, clause 42.3, to define shift work for employees covered by the Agreement as being ordinary hours worked outside those hours excluded by clause 42.3 of the proposed Agreement.
a. [we will still need to ask for an undertaking re clause 42 that, notwithstanding clause 42 of the Agreement, employees engaged in shift work shall be entitled to additional annual leave in accordance with the National Employment Standards and Fair Work Act 2009.]
If there are any questions please give me a call on [contact number].
Thanks.
Kind Regards,
Shari Charrington
[formatting omitted]
On 6 September 2017, the Commission replied to this correspondence advising the Applicant that there were still a number of outstanding issues and requested a response from the Applicant by close of business Friday, 8 September 2017. The correspondence stated:
“…Upon review of the application documentation, the Commissioner has highlighted some concerns, detailed below.
1. The Commissioner has viewed the provided response regarding Q2.3, Q2.5 and Q2.8 of the F17 and has requested a revised F17 be provided. In addition the Commissioner notes that there is greater than 14 days between employees being notified and the Notice of Employee Representational Rights (NERR) being distributed. The Commissioner would like to confirm this is the correct date and has requested further information be provided.
2. The Commissioner notes that Q2.16 states that shift workers are not engaged under the agreement, however the agreement allows for shift workers at clause 42 of the agreement. The Commissioner would like to confirm if any shift workers are currently engaged.
3. The Commissioner has requested that the undertakings which were proposed in the previous email be provided regarding the issues surrounding part time employees entitlement to personal/carer’s leave and shift workers entitlement to an additional weeks annual leave as per the NES.
If an undertaking is to be provided, please ensure that it is:
·provided in a form that can be published with the Agreement (for example, as a single consolidated, standalone document separate to any response given to these preliminary findings); and
·signed in accordance with the Fair Work Regulations 2009, in particular, regulation 2.07, which states: “For subsection 190(5) of the Act, an undertaking relating to an enterprise agreement must be signed by each employer who gives the undertaking.”
Furthermore, the Commissioner has asked that you seek the views of all bargaining representatives regarding any proposed undertakings. Any objections to the proposed undertakings should be raised with the Commission prior to the approval of the agreement.
The Commissioner has kindly requested that you provide a response to the above as soon as possible, but by no later than the close of business, Friday 8 September 2017.
Kind Regards
[Agreement Assessor Name]
Agreement Assessor
Member Support Research Team[formatting omitted]
The Commission did not receive a response to the correspondence sent to the Applicant on 6 September 2017. The Commission sent a further email on the 12 September 2017 notifying the Applicant that no response had been received and that a response was requested by close of business 13 September 2017.
The Applicant provided a response on 13 September 2017, stating they had been off with the flu and advised that a new Form F17 would be submitted once it had been signed by the Employer, that no shift workers are engaged and that the Employer will be submitting an undertaking regarding the issues raised by the Commission.
On 20 September 2017, multiple telephone calls were placed to the Applicant notifying them that their submissions were overdue. The Applicant was not available and did not return these telephone calls.
The Applicant provided a response on 21 September 2017, stating that they had not received signed copies of the Form F17 back from the Employer and requested an extension.
On 21 September 2017, the Commission granted an extension for submissions until close of business 28 September 2017. The Applicant was advised that if no submissions were received by the deadline the mater may be listed for hearing or decided on the materials currently before the Commission.
The Commission did not receive a response to the correspondence sent to the Applicant on 21 September 2017. The Commission sent a further email on 3 October 2017 advising that if no response was received the Commissioner would list the matter and decide the matter on the materials provided. The Applicant was asked to provide a response to this email by noon AEST 6 October 2017.
The Commission did not receive a satisfactory response from the Applicant. I therefore consider that it is both fair and appropriate that I determine the matter on the basis of material before me. I have determined that the Agreement does not meet the better off overall test in accordance with s.186(2)(d) and s.193 of the Act and that it contains terms which are detrimental when compared to the NES. In these circumstances I have provided the Applicant with reasonable opportunity to provide submission and undertakings which might resolve these concerns. However, the Applicant has not provided signed undertakings which resolve some of these concerns.
Further, on the material before the Commission, I am unable to be satisfied that the application satisfies the requirements of s.173(3) of the Act.
On that basis the Application is dismissed.
COMMISSIONER
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