Delta FM Australia Pty Ltd T/A Delta FM
[2021] FWCA 38
•6 JANUARY 2021
| [2021] FWCA 38 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Delta FM Australia Pty Ltd T/A Delta FM
(AG2020/3284)
COMPASS GROUP (DELTA FM) ENTERPRISE AGREEMENT 2020
Electrical contracting industry | |
COMMISSIONER WILLIAMS | PERTH, 6 JANUARY 2021 |
Application for approval of the Compass Group (Delta FM) Enterprise Agreement 2020.
[1] An application has been made for approval of an enterprise agreement known as the Compass Group (Delta FM) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Delta FM Australia Pty Ltd T/A Delta FM (the Applicant). The Agreement is a single-enterprise agreement.
[2] An employee bargaining representative, Mr Bailey, advised the Commission that the employees he represented do not support approval of the Agreement.
[3] The grounds on which these employees oppose approval of the Agreement relate to concerns about the wording of the annual leave clause and the impact on work cycle employees and the application of some allowances.
[4] I have considered these objections which it is fair to characterise as the re-agitating of claims that have been previously rejected by the Applicant in bargaining. Whilst these employees are entitled to be dissatisfied with certain aspects of the final agreement that was voted upon, these complaints are not reasons for the Commission to not approve the Agreement.
[5] Separately the Applicant has addressed in its submissions to the Commission a concern raised by Mr Bailey regarding casuals voting and I accept the Applicant’s submission in response to this. The form F17 Employer’s Declaration in Support of Enterprise Agreement, which I accept, states that only 41 casual employees were covered by the Agreement. The declaration states that at the time of voting there were 200 employees covered by the Agreement and of these 162 cast a valid vote and of those 118 voted to approve the Agreement.
[6] Separately the Electrical Trade Union of Australia (the CEPU or the Union) has written to the Commission advising that whilst it was involved in the bargaining it did not reach agreement with the Applicant and does not support the filing of an application in respect of the Agreement. The union states that therefore it chose not to file a form F 18 in respect of the application.
[7] The Union points out that clause 2 of the Agreement relevantly reads as follows,
“It is intended that upon approval by the Fair Work Commission (Commission), the Agreement will also cover The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (known as “Electrical Trades Union”) (referred to collectively as the Union).” (Underlining added)
[8] The Union says that it objects to the inclusion of its name in clause 2. It submits that it contravenes section 345 of the Act and misrepresents that the Union will have certain rights and obligations by way of being covered by the Agreement when it is not covered. The Union raises other concerns about how the inclusion of this wording may have possibly influenced employees when voting.
[9] I note the Union does not submit that it objects to the Commission approving the Agreement rather it just wants its name deleted from clause 2.
[10] The Applicant submits that the Union was a bargaining representative for relevant employees who are covered by the Agreement. The Applicant submits that wording in clause 2 naming the CEPU existed in numerous draft versions of the Agreement and the Union raised no concerns about this.
[11] In October 2020 the Applicant says it provided the Union with a copy of the Agreement and notified it that the Agreement would be put to a vote on in October 2020.
[12] The Applicant submits that at no time prior to the vote did the Union raise any concerns about the wording of clause 2 and in fact no concern was raised by the Union before it wrote to the Commission in December 2020 which was after the application had been made for approval of the Agreement.
[13] The Applicant however says notwithstanding this history it does not object to the CEPU’s name being removed from clause 2 of the Agreement.
[14] Even if the Commission was persuaded that reference to the CEPU should be removed from clause 2 the Commission has no power to change the wording of a clause in an agreement when considering an application for approval. 1 Consequently, the wording of clause 2 of the Agreement will not be amended.
[15] For the sake of clarity, the Commission records that the CEPU has not given a notice under subsection 183(1) of the Act that the organisation wants the Agreement to cover it. Consequently, notwithstanding the wording of clause 2, the Agreement does not cover the CEPU. 2
[16] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[17] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 January 2021. The nominal expiry date of the Agreement is 5 January 2025.
1 See Advantaged Care Pty Ltd [2020] FWC 5612 at [32].
2 See section 53(2)(a) of the Fair Work Act 2009.
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