De Neefe Pty Ltd T/A De Neefe Signs Pty Ltd

[2013] FWC 10227

[2013] FWC 10227

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

De Neefe Pty Ltd T/A De Neefe Signs Pty Ltd
(AG2013/12782)

COMMISSIONER RYAN MELBOURNE, 30 DECEMBER 2013

Application for approval of the De Neefe Signs Melbourne Manufacturing/Production Employees, Enterprise Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the De Neefe Signs Melbourne Manufacturing/Production Employees, Enterprise Agreement 2013 (the agreement)was filed with the Fair Work Commission (the Commission) on 20 December 2013.

[2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) sworn by Ms Hanna Taouk, Operations Manager for De Neefe Pty Ltd. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of Employee Representational Rights (a Notice) to employees on 11 November 2013.

[3] Amendments to the Fair Work Act2009 (the Act) which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) of the Act states as follows:

“Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.”

[4] Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations) sets out the terms of a Notice as follows:

“Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies—include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

[If a low-paid authorisation applies to the agreement—include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument—include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

• the nominal expiry date of your existing agreement has passed; or



• a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).




Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].”

[5] The Notice issued to employees in relation to this agreement contains the content prescribed by the regulations but also contains other content.

[6] Non compliance with s.174(1A) of the Act by the employer means that there is no valid enterprise agreement before me.

[7] The application in this matter is therefore dismissed.

Observations

[8] I have considered the terms of the proposed agreement and, had the application been validly made, I would have raised a number of concerns in relation to the contents of the agreement. To assist the employer I make the following observations as to the contents of the agreement. These observations are not part of the decision in this matter.

Clause 2

[9] Clause 2 of the agreement defines the parties to the Agreement. The parties include the Australian Manufacturing Workers’ Union. Two observations need to be made about clause 2. Firstly, the scheme of the Fair Work Act does not envisage there being parties to an enterprise agreement. An enterprise agreement can cover an employer, its employees and an employee organisation. Secondly, a union may become covered by an enterprise agreement only in accordance with the provisions of s.183 of the Act, but in the present matter no application was made by the Australian Manufacturing Workers’ Union to be covered by the Agreement.

Clause 9

[10] Clause 9 provides for part time employment which is absent some of the protections contained in clause 11 of the Manufacturing and Associated Industries Award and in clause 12.3 of the Graphic Arts, Printing and Publishing Award.

Clause 11.2.3

[11] Clause 11.2.3 provides that if an employee whilst on annual leave suffers an illness of up to 5 days then the employee cannot claim personal leave for that illness. This provision operates contrary to s.89(2) of the Act. The effect of s.89(2) is that if an employee is on annual leave and becomes injured or ill and is entitled to personal/carers leave then “the employee is taken not to be on paid annual leave for the period of that other leave or absence”.

Clause 11.3.5

[12] Clause 11.3.5 requires employees to advise their supervisor or Production Management with notice of the use of personal/carers leave no later than 30 minutes before the period of leave commences. This time limit doesn’t apply if there are exceptional circumstances. The requirements of clause 11.3.5 are contrary to the explicit language of s.107(2)(a).

Clause 14.4

[13] Clause 14.4 provides that all casual employees will be paid the award wage rate plus 25%. The award rate to be paid is not that for the classification of work which the employee is performing but is limited to the award wage rate of C13 of the Manufacturing and Associated Industries and Occupations Award or Level 2 of the Graphic Arts Printing and Publishing Award. This would fail the Better Off Overall Test for any casual employee employed in work to which a classification higher than C13 or Level 2 applied.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR546364>