CooperVision Australia Pty Ltd
[2011] FWA 1796
•25 MARCH 2011
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DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
CooperVision Australia Pty Ltd
(AG2010/23999)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 25 MARCH 2011 |
CooperVision Australia Pty Ltd Optical Employees Collective Agreement 2010.
[1] On 17 December 2010 CooperVision Australia Pty Ltd (CooperVision) lodged an application pursuant to section 185 of the Fair Work Act 2009 (the Act), seeking the approval of the CooperVision Australia Pty Ltd Optical Employees Collective Agreement 2010 (the agreement).
[2] On 20 January 2011 I issued Preliminary Findings through which I sought clarification with respect to a range of issues referenced in the agreement. My findings invited CooperVision to provide written responses and/or undertakings.
[3] CooperVision responded to these Preliminary Findings through correspondence from Norman Waterhouse Lawyers of 15 January 2011. This response clarified a reference to the Corporate Ethics and Whistleblowers Policy as erroneous and offered undertakings dealing with First Aid allowances, Leading Hand Allowances and potential increases to award allowance quantums for the purpose of the "better off overall test".
[4] My Preliminary Findings identified concern over the extent to which the agreement was limited in its scope to current employees of CooperVision and did not apply to people employed after the date of approval. Further, the agreement specifically excludes casual employees from coverage.
[5] The employer's response confirmed the restricted application of the agreement. The employer position was that:
“2. Clause 3 - Scope of Agreement
Section 186(3) of the Act requires that Fair Work Australia be satisfied that the employees covered by an agreement are fairly chosen and, in doing so, Fair Work Australia can take into account the make-up of that group, in particular, whether that group is geographically, operationally or organisationally distinct.
It is the Company’s position that the employees to be covered by the Agreement was fairly chosen within the meaning of section 186(3) because the Company and the employees negotiating the Agreement reached a decision to that effect. It is the Company’s position that this is sufficient to satisfy the requirements under the Act1.” (sic)
[6] Relative to casual employees, the employer position was that:
“3. Clause 6 - Casual Employees
It is not proposed that the Agreement apply to casual employees. The Company does not currently employ any casual employees in the contact lens manufacturing and picking and packing divisions of the business. However, if casual employees are engaged during the life of the Agreement, their employment would be governed by the Manufacturing & Associated Industries and Occupations Award 2010 (the Award).”
[7] The application was subsequently listed for hearing on 7 March 2011. At this hearing, CooperVision was represented by Mr Dasan of counsel and Mr Larven. Employee representatives, Ms Kimber and Ms Collins also appeared and supported the employer position.
[8] At this hearing, CooperVision reiterated its position that the exclusion of new employees, including any employees engaged as casuals should not preclude the agreement from approval. CooperVision indicated that it had no current proposals to either engage casual or additional weekly hire staff and had been progressively reducing overall employee numbers.
[9] CooperVision relied on the Full Bench majority decision in Newlands Coal Pty Ltd v CFMEU 1 where an agreement which allowed employees to elect to opt out of agreement coverage had been held to meet the requirements for approval. I note at the outset that this decision is now the subject of a further appeal, but in any event, the capacity to opt out of an agreement is not analogous to the factual situation in that such that I do not consider that decision to be pertinent to this circumstance.
[10] CooperVision asserted that the totality of current employees (excluding supervisory and management staff) represented an identifiable group who meet the requirements of s.186.
[11] The two employee representatives supported approval of the agreement on the basis that its coverage had been discussed with the employees who understood that, consistent with earlier agreement versions, the agreement would only apply to existing employees.
[12] The combination of information provided in response to the Preliminary Findings, and the information provided to me at the hearing of this matter addressed all of the issues raised in my Preliminary Findings with the exception that further attention must be given to the limited coverage of the agreement.
[13] Part 2-4 of the Act deals with enterprise agreements. Section 171 of the Act sets out the objects of this part in the following relevant terms:
“....
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
....”
[14] Section 172 relevantly states:
“172 Making an enterprise agreement
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
....
Single-enterprise agreements
(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
....”
[15] Division 4 of Part 2-4 sets out the preapproval steps and requirements with respect to an application for approval of an Enterprise Agreement. These steps all require the taking of various actions relative to employees who are employed at the time and who will be covered by the agreement.
[16] Section 186 is particularly significant relative to this issue. This section relevantly states:
“186 When FWA must approve an enterprise agreement—general requirements
Basic rule
....
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”
[17] The issue is whether the exclusion of future employees means that the group of employees to be covered by the agreement was fairly chosen, in so far as it was geographically, operationally or organisationally distinct.
[18] I have concluded that this group of employees, in relation to whom there is no indication that new weekly hire or casual employees will be added, should be regarded as operationally or organisationally distinct.
[19] I have considered the extent to which the exclusion of any new employees creates an inherent unfairness. Clearly, it establishes the likelihood of differential treatment but I cannot regard it as unfair in that new employees will be knowingly engaged under the terms of the relevant modern award. In this respect, s.134 specifies the objective of modern awards in the following terms:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.”
[20] As a result, I am satisfied that the application of the agreement does not represent a barrier to approval of the agreement.
[21] The requirements of ss.186, 187 and 188 of the Act have been met.
[22] The approval of the agreement will be subject to the provision of a written undertaking, signed by an authorised CooperVision officer which confirms the First Aid and allowance quantums issues addressed in the Norman Waterhouse Lawyers correspondence of 15 February 2011. This undertaking should be provided to me and to the two employee representatives by 1 April 2011. Should the employee representatives seek to respond to these undertakings, any such response should be received by 8 April 2011.
SENIOR DEPUTY PRESIDENT
Appearances:
S Dasan, counsel for CooperVision Australia Pty Ltd
J Kimber and L Collins, employee representatives.
Hearing details:
2011.
Adelaide:
March 7.
1 [2010] FWAFB 7401
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