Cowell Electric Supply Pty Ltd
[2011] FWA 6856
•5 OCTOBER 2011
[2011] FWA 6856 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Cowell Electric Supply Pty Ltd
(AG2011/1778)
(AG2011/1779)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 5 OCTOBER 2011 |
Cowell Electric Supply Pty Ltd Workplace Agreement 2011 (Olympic Dam).
Cowell Electric Supply Pty Ltd Workplace Agreement 2011 (SA and Head Office Admin).
[1] On 20 July 2011 Cowell Electric Supply Pty Ltd (Cowell) lodged applications for the approval of the Cowell Electric Supply Pty Ltd Workplace Agreement (Olympic Dam) (the Olympic Dam agreement) and the Cowell Electric Supply Pty Ltd Workplace Agreement (SA and Head Office Admin) (the Head Office agreement). Both applications were referred to me for consideration. Whilst there are some differences in the agreements, there are substantial similarities.
[2] The applications have been the subject of two hearings and two separate written requests for information.
[3] Through these hearings and advices I have drawn to the attention of Cowell my concerns about the process followed to reach the agreements and a comprehensive range of concerns about the content of the agreements in the context of the "better off overall test" set out in Subdivision C of Division 4 of Part 2-4 of the Fair Work Act 2009 (the FW Act).
[4] These concerns went to the hourly rates of pay, the application penalty rates, working hours, leave provisions and travel arrangements and a request that the remuneration rates in the agreement not be published.
[5] At the last hearing, on 8 September 2011 Cowell foreshadowed the provision to me, of further comprehensive undertakings to deal with the matters raised. I agreed to consider the undertakings to be put to me but expressed concern that the extent of the undertakings had reached a point where they were so substantial that they could be regarded as changing the character of the agreement reached with employees.
[6] These undertakings were provided on 21 September 2011. The undertakings relative to both agreements extended over some four pages and covered:
● a limitation on a number of additional hours which could be worked by administration employees
● an increase in the hourly labour rate of pay
● the deletion of junior pay rates
● advice with respect to the non-operation of the Living Away from Home Allowance for employees at Olympic Dam and undertakings applicable with respect to accommodation and meals
● arrangements with respect to travel and remote work, and
● arrangements with respect to Appendix C of the Olympic Dam agreement relative to remote area housing and travel benefits (applicable to the Olympic Dam agreement only).
[7] Consistent with my request at the hearing on 8 September 2011 these undertakings were provided to specified employee representatives who signed the agreements, for employee comment. The Olympic Dam employees identified questions about the operation of the living away from home allowance and the operation of the remote area housing and travel benefit. I have taken it that these questions could have application to employees covered under either agreement.
[8] On 29 September 2011 I referred these questions back to Cowell for comment. On 5 October 2011 I received advice from Cowell in response to these employee questions.
[9] The Cowell position may be entirely correct, but it compounds my concerns that the extent of the undertakings now provided is so substantial that it changes the character of the agreements such that the employees covered by both agreements should be given the opportunity to vote on the agreements in the form in which Cowell now propose that they operate. Had there been unanimous employee endorsement of the Cowell position of 21 September 2011, it is possible that I may have reached a different conclusion.
[10] The applications did not identify any employee bargaining representatives and I understand that the negotiations were conducted with employees on an individual basis. Hence the approval of the agreement on the basis of these substantial undertakings when it is apparent that there are at least some employee concerns appears to me to go beyond the concept of an undertaking set out in s.190. This section states:
“190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWA must seek views of bargaining representatives
(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.”
[11] Additionally, I am now uncertain of the extent to which employees genuinely agreed to the agreement in its revised form. The concept of genuine agreement is addressed in s.188 and s.186 establishes this genuine agreement as a prerequisite for agreement approval.
[12] Consequently, I am not prepared to accept the undertakings or to approve the agreements.
[13] I consider that the more appropriate course of action is for Cowell to redraft its agreements in a form which it is confident meets the requirements of the "better off overall test" and properly reflect the arrangements it proposes to apply to employees so that employees can then vote on these agreement proposals. It may be wise for Cowell to obtain advice to assist it in this redrafting process.
[14] The applications for approval of both agreements are refused on this basis.
SENIOR DEPUTY PRESIDENT
Appearances:
S Porter, and S Chase and R Winter appearing for Cowell Electric Supply Pty Ltd.
M Andriessen, employee representative.
Hearing details:
2011.
Adelaide:
August 12 (By telephone)
September 8 (By telephone).
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