D H Gibson Pty Limited
[2011] FWA 911
•10 FEBRUARY 2011
[2011] FWA 911 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
D H Gibson Pty Limited
(AG2010/15313)
Storage services industry
COMMISSIONER CAMBRIDGE | SYDNEY, 10 FEBRUARY 2011 |
Application for approval of the Gibson Shopfitters - Warehouse Division / CFMEU & NUW Union Collective Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Gibson Shopfitters - Warehouse Division / CFMEU & NUW Collective Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by D.H. Gibson Pty Limited (the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Sydney on 18 November 2010 and included a Statutory Declaration of Maria M Bavaro made on behalf of the Employer and dated 11 November 2010 (the Declaration). The Declaration stated that the Agreement was made on 9 November 2010, therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.
[3] The application for approval was listed for Hearing on 7 December 2010, at which time the following appearances were recorded:
Mr P Glover from the Master Builders Association of NSW, (the MBA), appeared for the Employer together with Mr R Salamon and Ms M Bavaro;
Mr M Valentin appeared for the National Union of Workers, New South Wales Branch, (the NUWN); and
Ms Raju appeared for the Construction, Forestry, Mining and Energy Union, (the CFMEU).
[4] During the proceeding held on 7 December, Fair Work Australia (FWA) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification. Mr Glover and Mr Valentin provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by FWA and to respond in writing.
[5] FWA received correspondence dated 9 December 2010, from the MBA, which included Undertakings made by and duly signed by the Employer, and proposed to FWA pursuant to s.190 of the Act (the Undertakings). As required by subsection 190(4) of the Act FWA has sought the views of both the NUWN and the CFMEU regarding the Undertakings.
[6] On 13 December 2010, FWA received an e-mail communication from Warren Kelly of the CFMEU which relevantly stated; “We advise that we have reviewed the Undertakings in the above matter and we confirm that we have no further matters to add and that we are satisfied with the Undertakings.”
[7] On 17 December 2010, my Associate sent an e-mail communication to the MBA advising that FWA was awaiting a response from the NUWN in respect to the Undertakings. This e-mail was copied to the NUWN and the CFMEU. Further, this communication mentioned that notwithstanding that the CFMEU had confirmed that it was satisfied with the Undertakings, FWA had some ongoing concern because the Undertakings established inter alia, that employees “except Casuals” would be issued with safety footwear and other personal protective equipment. The Employer was invited to consider whether such a provision may involve a breach of a general duty of care established under any relevant Occupational Health and Safety legislation in that casual employees, unlike all other employees, would not be provided with safety footwear and personal protective equipment.
[8] On 21 December 2010, the MBA sent an e-mail to FWA which included correspondence dated 20 December 2010. In this correspondence the MBA on behalf of the Employer, rejected the concern raised in respect of the Undertakings as they applied to the non-provision of safety footwear and personal protective equipment to casual employees. In particular this correspondence from the MBA stated, inter alia;
“The Company submits that it is entitled to discharge its responsibilities under the Act by ensuring that all casual employees are ‘work ready’ by requiring them to possess the necessary PPE prior to commencing work.”
[9] On 8 February 2011, my Associate sent an e-mail communication to the MBA advising that FWA was awaiting a response from the NUWN in respect to the Undertakings. This e-mail was copied to both the NUWN and the CFMEU. On the same day, 8 February 2011, the NUWN responded to FWA by providing a copy of correspondence dated 16 December 2010 from the NUWN to FWA which inter alia stated; “We approve the undertakings, further we say it does not contravene Section 193 (3)[sic] of the Act.” (I have assumed that the correct reference would be to s.190 (3) of the Act.)
[10] It has appeared that the correspondence from the NUWN of 16 December 2010 was not received by FWA or inadvertently overlooked. Clearly the content of that correspondence was not known to my Associate when on the next day, 17 December, the e-mail communication mentioned in paragraph [7] above was sent.
[11] Notwithstanding the apparent administrative oversight involving the correspondence from the NUWN dated 16 December 2010, I am now able to further consider the application for approval having regard for; (a) the clarifications provided during the Hearing; (b) the Undertakings as now confirmed as being endorsed by the CFMEU and the NUWN, (the Unions); and (c) the correspondence from the MBA dated 20 December 2010, provided in response to concerns raised about the effects of the Undertakings in respect to the non-provision of safety footwear and personal protective equipment to casual employees.
[12] The relevant part of the Undertakings that has raised my concern is in the following terms:
“1. That Clause 9 PROTECTIVE CLOTHING be amended at the second sentence of the first paragraph to read as follows:
“A new Employee (except Casuals), will be issued with protective safety footwear by the Company.”
Further, that Clause 9, at paragraph three, the first sentence be amended to read as follows:
“A new employee (except Casuals) have an option to purchase the relevant safety footwear as long as the footwear is in accordance with the relevant safety standards”.
Further, that Clause 9 be amended at paragraph four to read as follows:
“Employees (except Casuals), will be issued with hi-visy shirts, hi-visy jacket and/or hi-visy polar fleece jumper and these will be replaced on a fair wear and tear basis”.
[13] The essential change that is proposed to be made by this part of the Undertakings is to insert the words “(except Casuals)” in the relevant paragraphs of clause 9 PROTECTIVE CLOTHING. As provided by s.191 of the Act, the Undertakings, if accepted by FWA are taken to be terms of the Agreement.
[14] It appears to be without dispute, particularly given the response correspondence from the MBA dated 20 December, that the Undertakings would, as terms of the Agreement, establish that the Employer would provide safety footwear and personal protective equipment to all employees other than casual employees who would be required to “... possess the necessary PPE prior to commencing work”.
[15] The Agreement appears to provide for engagement on either a full-time or casual basis only. Therefore the Agreement would, if altered by the Undertakings, grant a benefit to full-time employees in respect to the provision of safety footwear and personal protective equipment that would specifically be denied to any casual employee. A casual employee would presumably have to meet the costs themselves of such safety footwear and personal protective equipment. I note in passing that the Agreement also included terms that purport to permit the Employer to deduct from an employee’s wages the cost of footwear, (to a maximum of $100.00), if the employee leaves before the completion of 152 ordinary hours of work.
[16] Of course it is not unusual for employment instruments like enterprise agreements to establish more beneficial terms for full-time employees compared with terms applicable to casual employees. However in this instance the distinguishing terms relate to occupational health and safety and something which may be considered as the fundamental obligation on an employer to provide a safe work environment. This obligation is broadly reflected in this instance in Division 1, section 8 of the Occupational Health and Safety Act 2000 (NSW) (the OHS Act).
[17] In this context the Undertakings and their effect must be assessed as whether they satisfy the requirements for approval of enterprise agreements established by the Act.
[18] Relevantly subsection 186 (4) of the Act is in the following terms:
“Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).”
[19] Section 194, which is part of Subdivision D of Division 4 of Part 2-4 of the Act, is in the following terms:
“194 Meaning of unlawful term
A term of an enterprise agreement is an unlawful term if it is:
(a) a discriminatory term; or
(b) an objectionable term; or
(c) if a particular employee would be protected from unfair dismissal under Part 3-2 after completing a period of employment of at least the minimum employment period—a term that confers an entitlement or remedy in relation to a termination of the employee’s employment that is unfair (however described) before the employee has completed that period; or
(d) a term that excludes the application to, or in relation to, a person of a provision of Part 3-2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or
(e) a term that is inconsistent with a provision of Part 3-3 (which deals with industrial action); or
(f) a term that provides for an entitlement:
(i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or
(ii) to enter premises to hold discussions of a kind referred to in section 484;
other than in accordance with Part 3-4 (which deals with right of entry); or
(g) a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3-4 (which deals with right of entry).” [Emphasis added]
[20] Section 12 of the Act defines “objectionable term” in the following terms:
“objectionable term means a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;
either of the following:
(c) a contravention of Part 3-1 (which deals with general protections);
(d) the payment of a bargaining services fee.”
[21] Consequently it has been necessary to examine the provisions of the General Protections contraventions contained within of Part 3-1 of the Act.
[22] Firstly, I have noted subsection 336 (a) of the Act which is in the following terms:
“336 Objects of this Part
The objects of this Part are as follows:
(a) to protect workplace rights;”
[23] Secondly, subsection 340 (1) of the Act is in the following terms:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.”
[24] Thirdly, a workplace right is defined in s.341 of the Act which relevantly includes the following terms:
“341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or”
[25] Fourthly, s.12 of the Act defines workplace law in the following terms:
“workplace law means:
(a) this Act; or
(b) the Fair Work (Registered Organisations) Act 2009; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).”
[26] Fifthly, the Act sets out circumstances which involve adverse action and the relevant part of s.342 is in the following terms:
“342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action | ||
Item | Column 1 Adverse action is taken by ... | Column 2 if ... |
1 | an employer against an employee | the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer.” |
(Emphasis added)
[27] The word “discriminate” as used in s.342 of the Act is not the subject of any particular definition provided by s.12 of the Act. The Macquarie Dictionary contains the following definition of “discriminate”:
discriminate
–verb (i) 1. to make a distinction, as in favour of or against a person or thing: to discriminate against a minority.
2. to note or observe a difference; distinguish accurately: to discriminate between things.
3. Electronics to select a desired signal from a mixture of signals, on the basis of a particular property, as amplitude, frequency, phase, etc.
–verb (t) 4. to make or constitute a distinction in or between; differentiate: to discriminate one thing from another.
5. to note or distinguish as different.
6. Electronics to extract (a desired signal) from a mixture of signals.
–adjective 7. marked by discrimination; making nice distinctions. [Latin discriminātus, past participle, divided, distinguished]
[28] The analysis that I have undertaken of the effect of the Undertakings in the context of the legislative provisions as set out above leads me to a conclusion that the Undertakings would if accepted, establish terms of the Agreement which have the following characteristics:
(a) Firstly, the terms discriminate between a casual employee and all other full-time employees; and
(b) Secondly, the discrimination occurs in respect of the non-provision of safety footwear and personal protective equipment, a matter which arises from an entitlement to a benefit under a workplace law, in this case the OHS Act; and
(c) Thirdly, the discrimination would represent adverse action as contemplated by s. 342 of the Act; and
(d) Fourthly, as a consequence of (a) to (c), the terms would require or permit a contravention of Part 3-1 of the Act, specifically subsection 340 (1) (a) (i).
[29] Consequently, the terms of the Agreement as proposed by the Undertakings, would satisfy the definition of an objectionable term and would therefore be an unlawful term as contemplated by subsection 186 (4) of the Act. If I were to accept the Undertakings the consequent terms of the Agreement would be unlawful and FWA could not approve the Agreement.
[30] Therefore I am not prepared to accept the Undertakings. The Agreement does not satisfy the provisions of ss. 186 and 187 of the Act and therefore cannot be approved. The application is dismissed.
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