CQ Leisure Investments Pty Ltd T/A Tabatinga Entertainment Centre & Cafe
[2010] FWA 3118
•16 APRIL 2010
[2010] FWA 3118 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
CQ Leisure Investments Pty Ltd T/A Tabatinga Entertainment Centre & Cafe
(AG2010/3353)
COMMISSIONER CAMBRIDGE | SYDNEY, 16 APRIL 2010 |
Application for approval of the Tabatinga Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Tabatinga Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CQ Leisure Investments Pty Ltd T/A Tabatinga Entertainment Centre & Café(the Employer). 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] The application was lodged at Sydney on 4 January 2010. The application included a Statutory Declaration of Brian Parker, made on behalf of the Employer and dated 23 December 2009, (the Declaration). The Declaration stated that the Agreement was made on 23 December 2009. Consequently the application was made within the 14 day lodgement time limit established by s. 185 (3) of the Act.
[4] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements arises under S.173 of the Act which states as follows:
173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given. [emphasis added]
[5] Regulation 2.04 of the Fair Work Regulations 2009 (the Regulations) states as follows:
2.04 Notice of employee representational rights — how notice is given
(1) For subsection 173 (5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.
(2) The employer may give the notice to the employee personally.
(3) The employer may send the notice by pre-paid post to:
(a) the employee’s residential address; or
(b) a postal address nominated by the employee.
(4) The employer may send the notice to:
(a) the employee’s email address at work; or
(b) another email address nominated by the employee.
(5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet.
(6) The employer may fax the notice to:
(a) the employee’s fax number at work; or
(b) the employee’s fax number at home; or
(c) another fax number nominated by the employee.
(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.
(8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee. [emphasis added]
[6] It would therefore appear that the Act and the Regulations contemplate that each employee is to be given a notice of representational rights. Notwithstanding that sub-section (7) of Regulation 2.04 provides for display of the notice in a conspicuous location, it also refers to the employee as opposed to employees generally.
[7] The use of the particular words “each employee” in s.173 (1) establishes, in my view, a requirement on an employer that would not be discharged by simply placing a general notice on a notice board or on various notice boards. I acknowledge that Cargill C in her Decision of 9 October 2009 (United Group Rail Services Limited [2009] FWA 452), determined that placing a copy of a notice on six notice-boards satisfied both sub-section (7) of Regulation 2.04 and s. 173 (1) of the Act.
[8] However, with respect, in my view the provisions of both s.173 (1) and Regulation 2.04 require some degree of personalisation of the notice of representational rights. If this where not the case, then there would be no purpose served or work done by the words “each employee” in s.173 (1) of the Act.
[9] Consequently, in this instance, it would seem that s.173 (1) of the Act would not be satisfied given that paragraph 2.3 of the Declaration states “… Notice of Representational Rights form displayed on December 1st, 2009…”
[10] Further, I note that in United Group Rail Services Limited [2009] FWA 452, the particular circumstances of that case where said to be relevant to the operation of s.173 (1). Conceivably then the particular circumstances in this instance might require examination and if this issue was the only matter of concern with the application I would ordinarily entertain some Hearing or other means to address the question.
[11] Unfortunately however in this instance some potential difficulties may also arise in respect of subsections 180 (5) and 180 (6) of the Act which state:
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.
[Emphasis added]
[12] The Declaration indicated that there were six out of a total of eight employees who were less than 21 years of age. However in point 2.5 of the Declaration which specifically refers to subsection 180(5) of the Act, the following was recorded:
“All Staff were notified on December 14th, 2009 of the meeting held at Tabatinga on December 23rd, 2009 to explain the Agreement. They were all led through every aspect of the agreement making sure in particular, the younger staff understood all relevant contents and clauses. No non-english speaking background staff are currently employed at Tabatinga.”
[13] Consequently the evidence provided about the appropriate manner taken by the Employer relevant to the circumstances and needs of the young employees was encompassed by the apparent clarification that younger staff understood all relevant contents and clauses. It may have been of greater assistance if evidence had been provided that confirmed that the young employees were invited to have a parent or other older person attend the workplace and /or provide any questions or concerns about the terms of the Agreement on behalf of the young employees.
[14] There were also a number of specific terms contained in the Agreement which gave rise to concern in respect of the no-disadvantage test. Consequently FWA conveyed these various concerns to the Employer on 28 January 2010. Subsequently the Employer has provided further information to FWA.
[15] Unfortunately this further information has not provided an evidentiary basis to satisfy the requirements of ss. 173 and 180 of the Act. Further, the Employer sought to address concerns raised about the specific terms of the Agreement by incorporating alterations in an amended Agreement document. Although these alterations did seem to rectify the specific concerns, any alterations to the terms of the Agreement would need to be made by way of signed written undertakings in order to comply with s. 190 of the Act. Unfortunately the amended agreement document also contained a number of significant numbering errors that were not present in the Agreement document lodged with the application. The amended agreement document appeared to have been created with insufficient care such that it would be considered as an unreliable instrument.
[16] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application must be dismissed.
COMMISSIONER
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