FG Pharmaceuticals as trustee for RMH Trust

[2013] FWC 4755

[2013] FWC 4755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

FG Pharmaceuticals as trustee for RMH Trust
(AG2013/7213)

COMMISSIONER BULL SYDNEY, 24 JULY 2013

Application for approval of an enterprise agreement “the Community Pharmacy Multiple Business Agreement Maidens Brush Pharmacy”- Single employee only - application dismissed.

[1] On 26 June 2013 an application was made by FG Pharmaceuticals as trustee for RMH Trust for approval of an enterprise agreement. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and contained a number of deficiencies with respect to a valid application for approval of a single enterprise agreement.

[2] On receipt of the application the Fair Work Commission (the Commission) Registry contacted the Applicant’s representative Mr Guvlekjian, Director of RMH Trust on 27 June 2013 and left a voice mail message requesting Mr Guvlekjian call the Registry in relation to the application and to explain that he may wish to seek legal advice with respect to an application for approval of an enterprise agreement. On the Applicant’s return call he was advised to seek legal advice.

[3] On 28 June 2013, my Associate wrote to Mr Guvlekjian advising him that the document lodged with the application appeared to be a contract of employment between FG Pharmaceuticals as trustee for RMH Trust and its employee, Mr Cameron Morgan. My Associate also advised Mr Guvlekjian that pursuant to s.172(6) of the Act it prevents an enterprise agreement being made with a single employee. Mr Guvlekjian was advised that he may wish to familiarise himself with ss.186 and 187 of the Act and advise my Chambers how he wished to proceed with the application.

[4] On 4 July 2013 Mr Guvlekjian sent an email to my Chambers which stated:

“...after refering (sic) to the Fair Work Act 2009 Section 186 3A as stated in your response the particular staff member singled out has been done (sic) so due to him being a school student and not being eligible to attend the pharmacy until 2 hours prior to the pharmacy closure.

Cameron's role is different to all other staff members, he is not involved with customer service, he does not wear a uniform and performs different tasks to other staff. His role is limited and if the individual contract is not approved he will not be able to continue employment as he is unable to perform 3 hour shifts which is the minimum level of engagement under the Pharmacy Industry Award.”

[5] The matter was listed for conference to discuss the deficiencies of the application and Mr Guvlekjian’s response received on 4 July 2013.

[6] The conference was listed for 15 July 2013, however, Mr Guvlekjian, did not attend. My Associate called Mr Guvlekjian on his mobile a short time after the commencement of the conference to inquire as to his attendance at the conference. The call went through to Mr Guvlekjian voice mail and a message was left asking him to return the call.

[7] My Chambers did not receive a return call from Mr Guvlekjian. My Associate sent an email later that day on 15 July 2013 inquiring as to the Applicant’s non attendance at the conference and advised that if my Chambers did not hear from the Applicant by close of business 17 July 2013 a decision would issue dismissing the application.

[8] The Respondent phoned my Chambers on 16 July 2013, enquiring as to the status of the application. The Respondent advised that he did not attend the conference on 15 July 2013, as he was away and was not aware that he was required to attend.

[9] A further conference was held on 23 July 2013, via telephone as the Applicant’s business is located in Wyoming NSW to discuss the issues raised by the Commission. Mr Guvlekjian advised that following a Fair Work Ombudsman audit he was told he could not continue to employ a casual student for less than three hours per engagement under the modern Pharmacy Industry Award 2010.

[10] The relevant modern award listed at question 3.1 is the “Pharmacy Industry Award”. The proposed agreement lists the employee’s duties and responsibilities, including general shop duties involving cleaning, stock control and packing of medicines and other general shop duties.

[11] Upon a reading of the Pharmacy Industry Award 2010 (the Pharmacy Award) it does not appear to cover such a role. At Schedule B of the Pharmacy Award it defines the classifications listed under the Award. The Pharmacy Award appears to cover pharmacists and pharmacy assistants that are at the very least “in the process of acquiring the competencies listed for a holder of Certificate I in Community Pharmacy”.

[12] In correspondence from the Mr Guvlekjian dated 4 July 2013, he states that the employee is a school student. It would appear from the duties and responsibilities listed under the proposed agreement and the Applicant’s correspondence that the relevant Award may be the General Retail Industry Award 2010 (the Retail Award).

[13] Mr Guvlekjian states that the employee “will not be able to continue employment as he is unable to perform 3 hour shifts which is the minimum level of engagement under the Pharmacy Industry Award”.

[14] If the employee concerned is covered by the Retail Award, pursuant to clause 13.4 a minimum of one and a half hours each engagement is permissible.

“13.4 The minimum daily engagement of a casual is three hours, provided that the minimum engagement period for an employee will be one hour and 30 minutes if all of the following circumstances apply:

(a) the employee is a full-time secondary school student; and

(b) the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school; and

(c) the employee agrees to work, and a parent or guardian of the employee agrees to allow the employee to work, a shorter period than three hours; and

(d) employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.”

[15] Irrespective what modern award has application, the Agreement has been made with only one employee which is contrary to s.172(6) of the Act.

“Requirement that there be at least 2 employees

The application for approval of agreement is subject to the operation of s.172(6) of the Act, which states:

172 Making an enterprise agreement

...

Requirement that there be at least 2 employees

(6) An enterprise agreement cannot be made with a single employee.”

[16] In correspondence, dated 4 July 2013, and at the July 23 2013, phone conference Mr Guvlekjian points to s.186(3A) of the Act which refers to the group of employees being fairly chosen. The Applicant relies on the employee having been fairly chosen to overcome the prohibition on an agreement being made with a single employee. There are no exceptions to the rule that an enterprise agreement cannot be made with a single employee. As such, the agreement cannot be approved as it is not an enterprise agreement as defined by the Act.

Other deficiencies

[17] The Act lists a number of general requirements that must be met for the Commission to approve the Agreement. I am not satisfied that these requirements have been met. In particular, the Agreement does not contain a:

● nominal expiry date

● flexibility term

● consultation term

● dispute settling procedure

[18] The application was not accompanied by a copy of the Notice of Employee Representational Rights that would meet the requirements under ss.173 and 174 of the Act. The Applicant’s Form 17 states that the notice of the right to be represented by a bargaining representative was given verbally. Further the Form 17 employer declaration is purportedly made by the employee.

[19] While some deficiencies could be overcome by the provision of undertakings, the failure to provide a Notice of Employee Representational Rights and the making of the Agreement with one employee cannot be remedied in this manner.

[20] At the conclusion of the telephone conference on 23 July 2013, I advised the Applicant that given the number of deficiencies discussed with respect to the proposed agreement I was obliged to dismiss the application.

[21] In light of the deficiencies outlined above there is no valid application before me. Accordingly the application is dismissed.

COMMISSIONER

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