Construction, Forestry, Mining and Energy Union; NRG Projects Pty Ltd
[2010] FWA 1519
•1 MARCH 2010
[2010] FWA 1519 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/5553)
COMMISSIONER RYAN | MELBOURNE, 1 MARCH 2010 |
NRG Projects Pty Ltd and the CFMEU Shopfitting Enterprise Agreement 2009-2011.
[1] The application for approval of the NRG Projects P/L and the CFMEU Shopfitting Enterprise Agreement 2009-2011 was lodged with FWA on 4 February 2010 the same day the agreement was signed by both the employer and the CFMEU.
[2] The Form F17 statutory declaration of the employer identified that the process for seeking approval of the employees for the agreement was by way of a paid meeting of employees and a show of hands vote and that the agreement was made on 4th February 2010.
[3] On reading the agreement I had a number of concerns with the agreement in particular in relation to whether I could be satisfied that the agreement passed the better off overall test.
[4] My first key concern was in relation to two provisions (clause 6 and Appendix B) which appear to be intended to incorporate into the agreement the terms of an award.
[5] Clause 6 of the agreement provides:
“6. RELATIONSHIP TO PARENT AWARD
6.1. The provisions of the Award which are set out in Appendix B of this Agreement are incorporated into and form part of this Agreement (“Incorporated Terms”).
6.2. The express terms of this Agreement are supplementary to, and shall be read and interpreted wholly in conjunction with, the Incorporated terms provided that where an express term is inconsistent with an Incorporated Term, the express term will prevail to the extent of any inconsistency.”
[6] Appendix B to the agreement identifies the clauses to be incorporated into the agreement in the following manner:
“The following clauses of the Award in operation as at the date of lodgement of this Agreement are incorporated into this Agreement and operate in accordance with clause 6 of this Agreement to the extent that such clauses of the Award are not inconsistent with s.356 of the Workplace Relations Act as amended.”
Then follows a table which identifies a list of clause numbers and the subject matter of those clauses.
[7] The award referred to is defined in clause 2 of the agreement as being the National Joinery and Building Trades Products Award 2002.
[8] The immediate difficulty arising from the structure of clause 6 and Appendix B is that the award ceased to operate once it was replaced by the relevant modern award as from 1st January 2010. Thus to the extent that the agreement seeks to incorporate clause of the award which were in operation as at the date of lodgement, i.e. 4th February 2010, there is nothing to incorporate.
[9] My second key concern was in relation to an apparent incorporation of company policies into the agreement. Clause 24 – Engagement/Counselling and Termination Procedures contains the provision that, “Engagement of employees shall be in accordance with the Company policy and procedures and shall comply with relevant Legislation.” The company policy and procedures were not included with the agreement as filed with FWA.
[10] I wrote to both Mr Paul De Boni of the employer and Ms Emma Walters of the CFMEU on 15 February 2010 raising the above matters and seeking further information from both the employer and the CFMEU by close of business on 19 February. A follow up email was sent to Ms Walters on 22 February, followed by phone messages left at her office on 22 and 23February. A phone call was made to Mr De Boni on 22February and subsequent to that he was forwarded by email my correspondence dated 15 February.
[11] Neither the employer nor the CFMEU have responded to my request for further information or for undertakings to be given.
[12] On the material filed in this matter I cannot be satisfied, as I am required to be under s.186(2)(d) of the Act, that the agreement passes the better off overall test prescribed by s.193 of the Act.
[13] The structure of the language of clause 6 and Appendix B to the agreement mean that no provisions of the award are incorporated into the agreement. Without an effective incorporation of award terms into the agreement the result is that the agreement is missing critical clauses such as hours of work, shift work, overtime and payment for work on public holidays. Even with the increased wage rates provided by the agreement employees will not be better off overall if employed under the terms of the agreement rather than the terms of the modern award.
[14] The application for approval is dismissed.
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