Eptec Pty Ltd
[2014] FWC 8555
•1 DECEMBER 2014
| [2014] FWC 8555 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Eptec Pty Ltd
(AG2014/8119)
COMMISSIONER RYAN | MELBOURNE, 1 DECEMBER 2014 |
Application for approval of the Eptec Pty Ltd Ship Building & Ship Repair Collective Agreement 2014-2018.
[1] An application has been made by Eptec Pty Ltd for approval of the Eptec Pty Ltd Ship Building & Ship Repair Collective Agreement 2014-2018 (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 an address 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] I make the following observations as to the contents of the Agreement. These observations are not part of the decision to dismiss the application in this matter but are made to assist the parties if they wish to make an enterprise agreement and seek to have it approved by the Commission.
Classifications
[7] Clause 12 of the Agreement contains a detailed classification structure with wage rates for each classification.
[8] Level 10 in the classification structure is the non trade classification of Sentry/Fire watch with a rate of pay of $17.87 per hour. Appendix A to the Agreement contains a Training Matrix which identifies the skills and duties for Levels 7 through to 1. Nowhere in the Agreement is there a clear identification of the appropriate skill level of a Sentry/Fire watch employee.
[9] The Statutory Declaration of the employer in support of the application for approval, the Form F17 identified that the classification structure in the Agreement was different from the classification structure in the (the Award), but failed to provide a table that identifies how the classifications in the Agreement relate to the classifications in the Award.
[10] Having regard to the classification structure of the Award and to what the Commission understands is the role of a Sentry/Fire watch in the shipbuilding and ship repair industry it would appear that the appropriate award classification is at the very least C12 or possibly C11. The descriptions of the classification levels of C14 to C11 are as follows:
“B.3.3 Wage Group: C14
(a) Engineering/Manufacturing Employee—Level I
(i) An Engineering/Manufacturing Employee—Level I is an employee who is undertaking up to 38 hours induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance.
(ii) An employee at this level performs routine duties essentially of a manual nature and to the level of their training:
● performs general labouring and cleaning duties;
● exercises minimal judgement;
● works under direct supervision;
● is undertaking structured training so as to enable them to work at the C13 level.
B.3.4 Wage Group: C13
(a) Engineering/Manufacturing Employee—Level II
(i) An Engineering/Manufacturing Employee—Level II is an employee who has completed up to three months structured training so as to enable the employee to perform work within the scope of this level.
(ii) An employee at this level performs work above and beyond the skills of an employee at the C14 level and to the level of their skills, competence and training:
● works in accordance with standard operating procedures and established criteria;
● works under direct supervision either individually or in a team environment;
● understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality deviations/faults;
● understands and utilises basic statistical process control procedures;
● follows safe work practices and can report workplace hazards.
B.3.5 Wage Group: C12
(a) Engineering/Manufacturing Employee—Level III
(i) An Engineering/Manufacturing Employee—Level III is an employee who has completed an Engineering Production Certificate I or Certificate II in Engineering or equivalent so as to enable the employee to perform work within the scope of this level.
(ii) An employee at this level performs work above and beyond the skills of an employee at the C13 level and to the level of their skills, competence and training:
● is responsible for the quality of their own work subject to routine supervision;
● works under routine supervision either individually or in a team environment;
● exercises discretion within their level of skills and training;
● assists in the provision of on-the-job training.
B.3.6 Wage Group: C11
(a) Engineering/Manufacturing Employee—Level IV
Laboratory Tester
(i) An Engineering/Manufacturing Employee—Level IV is an employee who has completed an Engineering Production Certificate II or Certificate II in Engineering—Production Technology or equivalent so as to enable the employee to perform work within the scope of this level.
(ii) A Laboratory Tester is an employee who has completed a Certificate II, or equivalent, in Sampling or Measurement so as to enable the employee to perform work within the scope of this level.
(iii) An employee at this level performs work above and beyond the skills of an employee at the C12 level and to the level of their skills, competence and training:
● works from complex instructions and procedures;
● assists in the provision of on-the-job training;
● co-ordinates work in a team environment or works individually under general supervision;
● is responsible for assuring the quality of their own work;
● in a laboratory the employee performs basic/simple routine tests under close supervision and communicates results of those tests to the appropriate personnel.
[11] The level of supervision required of a C14 and C13 appear to be incompatible with the role of a Sentry/Fire watch employee where there is a degree of autonomy in the role and a degree of responsibility attached to the very nature of the duties of being a Sentry/Fire watch employee and where supervision may be routine (C12) or general (C11) but is not direct (C14 and C13).
[12] If the minimum appropriate classification for a Sentry/Fire watch employee in the ship building and ship repair industry is C12 then the wage rate provided for a Sentry/Fire Watch employee under the terms of the Agreement fails the Better Off Overall Test as the Agreement wage rate for a Sentry/Fire watch employee, at $17.87 per hour, is less than the C12 Award rate of $18.02 per hour. Equally, if the appropriate classification for a Sentry/Fire watch employee in the ship building and ship repair industry is C11 then the wage rate provided for a Sentry/Fire Watch employee under the terms of the Agreement fails the Better Off Overall Test as the Agreement wage rate for a Sentry/Fire watch employee, at $17.87 per hour, is less than the C11 Award rate of $18.64 per hour.
[13] The employer may wish to consider the above observation when making any new enterprise agreement. I note that merely increasing the Agreement rate for a Sentry/Fire watch employee to the appropriate Award rate will not necessarily be sufficient as the BOOT requires that an employee be better off overall if employed under the terms of an enterprise agreement as against being employed under the terms of an award.
[14] Clause 21.3 contains provisions in relation to personal/carer’s leave. The clause correctly describes that the entitlement to personal/carer’s leave is accrued at 10 days per year and there is no cap. However in the same clause it states “Up to 10 days (maximum 76 hours) in any given year can be used for carer’s leave”. This limitation is both contrary to and misrepresents an entitlement under the National Employment Standards (NES).
[15] Clause 24.6 contains cross referencing errors.
[16] Clause 27 is titled “Time Keeping - Late Comers” and provides as follows:
“The Company may select and utilise for time keeping purposes any portion of an hour (normally 15 minutes) and may deduct that time from employees who are late to start work or cease work before the normal finishing time without reasonable cause.”
[17] The difficulty that arises with this clause is that whilst the employer reserves to itself the right to set any portion of an hour (which may be much greater than 15 minutes) for the purposes of penalising employees who are late to start work or cease work before the normal finishing time without reasonable cause there is no requirement that the same portion of an hour be used be used to pay an employee who works before or after the normal start or finishing time. This may be a BOOT issue.
[18] Clause 32.1 provides a right for the employer to withhold monies owed to an employee equal to “the value of safety boots issued should an employee leave of their own accord within 3 months”. The concern is whether this is a permitted deduction under s.324 of the Act.
[19] Clause 34 is titled “Settlement of All Claims” and is in the following terms:
“Except for Work Cover claims, the finalisation of this agreement by the parties settles in full all wages and conditions claims arising against the Company by any employee.”
[20] The clause appears to extinguish all rights that an employee may have under the Fair Work Act to pursue any claim for a breach of an award, enterprise agreement or a statutory entitlement which occurred before the making of the Agreement. If the employer intends to retain this clause in any new enterprise agreement then the employer may want to consider how it will argue that such a clause is able to be in an enterprise agreement.
[21] Clause 38 contains Eptec’s House Rules. The House Rules misconduct is defined by a non-exhaustive list of conduct which includes inter alia the following:
● “Divulging confidential company information, unauthorised possession of company documents or preferential treatment to the third party”;
● “Unjustified absence from the workplace during a period in which a request for leave has been declined”; and
● “Refusing to undergo medical examination by a medical practitioner nominated by the Company or by an independent third party”.
The concept of serious misconduct is dealt with in the Fair Work Regulations at Reg. 1.07.
These three types of actions describe conduct which could be serious misconduct, but could equally be viewed as less serious misconduct and therefore it extends the concept of serious misconduct to include conduct which would only be considered, objectively, as misconduct.
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