Employment Innovations Pty Ltd
[2010] FWA 317
•20 JANUARY 2010
[2010] FWA 317 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/20779)
COMMISSIONER CAMBRIDGE | SYDNEY, 20 JANUARY 2010 |
Application for approval of the Employment Innovations Pty Ltd Enterprise Agreement 2009.
[1] An application has been made for approval of an enterprise agreement known as the Employment Innovations Pty Ltd Enterprise Agreement 2009 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Employment Innovations Pty Ltd (the Employer). The Agreement is purported to be 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 22 December 2009. The application included a Statutory Declaration of Dimitra Karas, made on behalf of the Employer and curiously dated 24 December 2009, (the Declaration). The Declaration stated that the Agreement was made on 21 December 2009, thereby satisfying 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 is specified by s.181 of the Act which states as follows:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[5] As can be seen from s. 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.
[6] In this instance, the Declaration stated that the date on which the last notice of representational rights was provided was 30 November 2009. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 21 December 2009.
[7] Consequently the Agreement does not comply with the requirements of s.181 (2) of the Act.
[8] It would be conceivable that the failure of the application to meet the procedural requirements of the Act could have arisen from mistake or some inadvertent error. However it would be potentially problematic to contemplate allowing for correction or amendment, perhaps under section 586 of the Act, given that; (a) the relevant material has been provided in the form of a Statutory Declaration, and (b) the procedural requirements are contained in the Act, and not some subordinate instrument. Further, in this instance the Declaration was apparently declared on 24 December 2009, 2 days after the document was lodged and date stamped at Fair Work Australia, New South Wales.
[9] Any proper process to possibly permit correction or amendment would likely require a Hearing involving careful examination and testing of evidence from the deponent of the Statutory Declaration as a witness in the proceedings. In a practical sense, particularly as some of the terms of the Agreement appear to operate so as to cause the Agreement to fail the no disadvantage test, it would be potentially more costly and inconvenient to the applicant employer to allow the application to proceed at all.
[10] For the benefit of the Parties to the Agreement, the terms of the Agreement that appear to offend the no disadvantage test include, but are not limited to:
1. Clause 2 which introduces the prospect that an employee would be subject to employment terms and conditions which are unspecified but may be determined by a “Client of the Employer” such “Client” being a (unidentified) Party to the Agreement .
2. Clause 5 which establishes that employment is confined to engagements for Assignments for a Client of the Employer. Further, an employee has no right to ongoing employment on any particular Assignment.
3. Clause 6 which provides for termination of an employee on 1 day’s notice during the probation period.
4. Clause 6 which provides for serious misconduct in respect to termination of employment to include; “non-compliance with policies and procedures of the Employer or Client of the Employer”.
5. Clause 8 which establishes various obligations on employees to meet unspecified requirements of the Client of the Employer including performing duties outside the normal scope of duties and at other work sites.
6. Clause 10 which removes termination of employment as a matter subject to the dispute resolution procedure.
7. Clause 14 which provides for the Employer to nominate the superannuation fund for employees’ contributions rather than permit employee choice of fund.
8. Clause 15 which provides for the working of ordinary hours at any time on any day provided that such ordinary hours do not exceed an average of 38 over 52 weeks.
9. Clause 15 which provides for the working of “preferred hours” at ordinary time rates.
10. Clause 16 which purports to provide for agreement from (unidentified) Clients of the Employer.
11. Clause 18 which provides for work on public holidays at ordinary rates.
12. Clause 19 which provides for cashing out of annual leave without stipulating any minimum leave credit balance that must be retained.
13. Clause 20 which provides for the cashing out of sick/care’s leave.
14. In terms of hourly wage rates, the comparative assessments attached to the application provide 7 examples yet there are 16 relevant reference instruments, although the employer has only 4 casual employees. Further, the utility of such comparisons would be dependant upon the particular hours that any individual may be required to work over the 52 week period of the analysis.
[1] 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 is dismissed.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
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