Environmental Vegetation Management Australia Pty Ltd
[2023] FWC 1953
•7 AUGUST 2023
| [2023] FWC 1953 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Environmental Vegetation Management Australia Pty Ltd
(AG2023/2373)
| COMMISSIONER WILSON | MELBOURNE, 7 AUGUST 2023 |
Application for approval of the EVM Australia Enterprise Agreement 2023 – Application dismissed
An application has been made for approval of the EVM Australia Enterprise Agreement 2023 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act) by Environmental Vegetation Management Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
On 21 July 2023, correspondence from the Fair Work Commission (the Commission) was sent to the Applicant requesting further information on three matters with a response sought from the Applicant by 4.00PM Wednesday 26 July 2023. The three matters were:
how s.173(3) of the Act had been complied with, and specifically, whether all employees who were employed at the time of notification were given the Notice of Employee Representational Rights (NERR) within 14 days of the notification time
a National Employment Standards (NES) inconsistency with the Public Holidays clause in the Agreement
how the Agreement passes the Better Off Overall Test (BOOT) as the rates of pay for several Agreement classifications fall below the Award.
As no response was received, further correspondence was sent from the Commission to the Applicant on 27 July 2023 providing a further period of time to provide a response. The response was sought from the Applicant by 12.00PM AEST Friday 28 July 2023.
On 31 July 2023, the Applicant was contacted and advised by the Commission that if a response was not provided by 5.00PM AEST Tuesday 1 August 2023, or an extension of time sought and given to the Applicant, the application for approval of the Agreement would be dismissed without further contact with the parties.
In the absence of a response to the matters raised by the Commission I turn to consider the application on the material before me.
Sections 186 and 187 of the Act set out the general requirements for approval of an enterprise agreement.
When the matter was allocated to me for determination, I expressed concerns to the Applicant that I was not satisfied that the NERR was provided to all employees in compliance with the Act, that the NES was not contravened, and that the Agreement passed the BOOT.
CONSIDERATION
Notice of Employee Representational Rights
In response to Question 18 of the Form F17a Employer's Declaration in Support of an Enterprise Agreement which deals with the notification time for the agreement the Applicant provided the notification time as 6 January 2023.
In response to Question 19 addressing the giving of the NERR to employees the Applicant states as follows:
16 February 2023 – “Employees received an email with the notice of employee representational rights attached. See attached.”
As detailed above Question 18 indicates that the notification time was 6 January 2023. Question 19 indicates that the last date that the NERR was given to a covered employee was 16 February 2023, 41 days after the notification time. In light of the responses on the Form F17a the Commission sought further information as it did not appear that all employees who were employed at the time of notification were given the NERR within 14 days of the notification time as required by s.173(3) of the Act. No response has been received from the Applicant about the Commission’s concern in this regard.
In the absence of the further information sought from the Applicant, I cannot be satisfied that the Applicant provided a copy of the NERR to all employees who were employed at the time of notification within 14 days of the notification time as required by s.173(3) of the Act.
Public Holidays
Clause 11(f)(iii) of the Agreement provides that:
“by agreement between the Employer and the majority of employees in a workgroup, or by agreement between the Employer and an individual employee, an alternative day may be taken as the public holiday in lieu of any of the prescribed days.” (underlining added)
The clause is contrary to s.115(3) of the Act which provides that an employer and employee may agree on a substitution of a public holiday day. The Act does not provide for an employer and the majority of employees to substitute a Public Holiday and for this to be binding on a single employee.
As the Agreement does not contain an NES precedence clause, I view Clause 11(f)(iii) as being inconsistent with s.115(3) of the Act.
Rates of Pay
The pay rate comparison conducted by the Commission identified several Agreement classifications as being below the Award. The classifications apply to new employees and if new employees are considered a daily hire employee as per Clause 9 of the Award. The rates of pay for new employees (daily hire) are identified as being between 2.23% below to 25.23% above the Building and Construction General On-site Award 2020.
According to the Form F17a, the Applicant is of the view the Agreement passes the BOOT as the Agreement contains either equitable or more favourable conditions compared to the equivalent Award conditions. No particulars of this assertion have been made.
In the absence of a response from the Applicant I cannot be satisfied that the Agreement passes the BOOT.
CONCLUSION
For the reasons detailed above I am not satisfied the Agreement meets the legislative requirements for approval. Consequently, the application for approval of the Agreement is dismissed. An order dismissing the application will be issued with this decision.
COMMISSIONER
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