Engineering & Maintenance Solutions Pty Ltd

[2014] FWC 9146

[2014] FWC 9146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Engineering & Maintenance Solutions Pty Ltd
(AG2014/10752)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 18 DECEMBER 2014

Application for approval of the Engineering & Maintenance Solutions Pty Ltd Wilmar Sugar Australia - Yarraville Refinery Enterprise Agreement October 2014 - October 2015.

[1] An application has been made by Engineering & Maintenance Solutions Pty Ltd for approval of the Engineering & Maintenance Solutions Pty Ltd Wilmar Sugar Australia - Yarraville Refinery Enterprise Agreement October 2014 - October 2015 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[4] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the Act as it did not include the name of each of the employer and employee representatives who signed the agreement as required by Regulation 2.06A.

[5] As the requirements of s.185(2)(b) have not been complied with the application is not a valid application. The application is therefore dismissed.

Observations

[6] Clause 3.6.7 provides that employees will forfeit an amount of pay to the employer if the employee fails to give the employer the required period of notice on termination. I refer the employer to the decision in Hydro Chem Pty Ltd, [2014] FWCA 5163.

[7] Clause 3.11 refers to repealed legislation.

[8] Clause 3.13 provides a consultation mechanism that does not meet the requirements of s.205 of the Act. Any new Agreement will need to contain a consultation term which meets the requirements of s.205 of the Act.

[9] Clause 3.19.1 contains provisions related to compassionate leave and provides that the entitlement to 2 days’ compassionate leave exists only upon “the death of an immediate family or household member”. The National Employment Standards (NES) provides for an entitlement to 2 days of compassionate leave on each occasion when a member of the employee’s immediate family or household dies, contracts or develops a personal illness that poses a serious threat to his or her life or sustains a personal injury that poses a serious threat to his or her life.

[10] Clause 3.19.1 therefore excludes a provision of the NES.

[11] Clause 3.19.9.1 also contains provisions relating to compassionate leave and states that 16 hours of personal leave can be used for compassionate leave. It is unclear why this clause is included as the entitlement to compassionate leave is a stand alone provision of the NES, as is personal/carer’s leave.

[12] At the very least clause 3.19.9.1 misrepresents employees’ rights under the NES.

[13] Clauses 3.19.6 and 3.19.11.2 provides for notice requirements in relation to the taking of personal/carer’s leave.

[14] These clauses cannot operate and are not permitted in an enterprise agreement to the extent that they purport to set notice requirements for an employee entitled to personal/carer’s leave or compassionate leave.

[15] Section 107 of the Act provides that:

“107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[16] The obligations on an employee to give notice to their employer in relation to personal/carer’s leave or compassionate leave are exhaustively set out in s.107(1).

[17] As is very clear from s.107(5) an enterprise agreement “may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave”. However, s.107(5) does not permit an enterprise agreement to alter the notice requirements set by s.107(1).

[18] Clause 3.19.4 provides an exhaustive definition of the term “immediate family” as follows:

“An immediate family member is a:
● spouse
● de facto partner
● child
● parent
● grandparent
● grandchild
● sibling or
● child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.”

[19] The exhaustive definition of the term “immediate family” in the Agreement is narrower than the concept of ‘immediate family’ as defined in s.12 of the Act. This is so because the Act defines a “spouse” to include a “former spouse” and defines a “de facto partner” to include a “former de facto partner”. The Agreement does not contain these expanded definitions of “spouse” or “de facto partner”. The effect of this would appear to be that clause 3.19.4 is effectively excluding an entitlement that would arise under the National Employment Standards and creating a detrimental effect on employees in relation to their NES entitlements.

[20] Clause 3.19.11.1 provides for an entitlement to personal/carer’s leaves and states in part:

“An employee is entitled to use up to 10 days personal leave each year to care for ...”.

[21] The effect of this clause is that it limits an entitlement to personal/carer’s leave to 10 days in each year, whereas the NES provides that an employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service and accumulates from year to year.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR559145>