Finook Industries Pty Ltd
[2011] FWA 2716
•6 MAY 2011
[2011] FWA 2716 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Finook Industries Pty Ltd
(AG2011/7077)
Road transport industry | |
COMMISSIONER CAMBRIDGE | SYDNEY, 6 MAY 2011 |
[1] An application has been made for approval of an enterprise agreement known as the Finook Industries Workplace Agreement 2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was made by Finook Industries Pty Ltd of 3 Milloo Close, Windella Downs, Maitland, NSW 2320 (the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Sydney on 1 March 2011 and included a Statutory Declaration of Ben Finucane made on behalf of the Employer and dated 28 February 2011, (the Declaration). The address given for Ben Finucane was 3 Milloo Close, Windella Downs, Maitland, NSW 2320. The Declaration was witnessed by Margaret Mary Finucane a Justice of the Peace (J.P. No. 116303) also of 3 Milloo Close, Windella Downs, Maitland 2320.
[3] It would therefore appear that there is a strong possibility that the Declaration was witnessed by a relative of the deponent. Although there is apparently no prohibition on Justices of the Peace witnessing documents for family members it is worth noting the following extract from A Handbook for Justices of the Peace in New South Wales:
“Can I witness a document for family members or myself?
You cannot witness a document for yourself. It is not advisable for you to witness documents for your immediate family members as the documents may be rejected on the basis of an actual or perceived conflict of interest, and because JPs must remain independent and impartial when providing JP services.” 1
[4] The Declaration stated that the date on which the Agreement was made was 22 February 2011. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.
[5] The application for approval was listed for Hearing before Fair Work Australia (FWA) on 30 March 2011, at which time Mr B Evans from reSolutions@Work Pty Ltd, the employer’s bargaining representative, appeared for the Employer via video link. During the proceedings held on 30 March, FWA identified various issues relating to the application documentation and the contents of certain terms contained in the Agreement which required clarification.
[6] Mr Evans provided some clarifications during the Hearing. The Employer was invited to consider some residual concerns raised by FWA and to respond in writing.
[7] FWA has subsequently received correspondence dated 20 April 2011 from reSolutions@Work Pty Ltd. This correspondence referred to the transcript of proceedings of 30 March 2011 and listed a number of changes that were said to have been made to the Agreement. These changes were described as “...procedural changes to the document where typographical errors have been made and for the sake of clarity.” The correspondence then set out some detail of the changes made or an explanation of concerns raised by FWA but presumably not the subject of any change to the document.
[8] The correspondence of 20 April also included a spreadsheet which purportedly “analyses the award rates of pay for an employee grade 2 or 3 working from Monday to Saturday as envisaged by the Loaded Rate of Pay.” The correspondence concludes with a proposition suggesting that if FWA is “... satisfied with this response, [we] will commit these issues to written undertakings which will be signed by the company.”
[9] Unfortunately the correspondence of 20 April 2011, from reSolutions@Work Pty Ltd failed to adequately address a number of concerns which were raised by FWA during the Hearing conducted on 30 March 2011. One important inadequacy related to the absence of information about the patterns of work that would be subject to the aggregated wage rates which removed, inter alia, any daily span of ordinary hours. Similarly, no explanation has emerged as to why there were different levels of aggregation for the two classifications contained in the Agreement.
[10] The absence of information about the actual work patterns that would be comprehended by the aggregated wage rate means that no valid comparison can be made with the relevant provisions of the reference instrument, the Road Transport and Distribution Award 2010 [MA000038]. Therefore FWA has no evidentiary basis upon which it could be satisfied that the Agreement passes the better off overall test. Various other matters raised during the Hearing were either not addressed in the correspondence of 20 April or could not be satisfactorily rectified by a proposed referral to be dealt with via the Dispute Resolution clause of the Agreement.
[11] The prospect for arranging for further Hearing as a means to endeavour to address the evidentiary inadequacies and ongoing concerns of FWA has been contemplated. However, further Hearing would provide neither an efficient nor successful means to enable approval of the Agreement in view of three important underlying issues.
[12] Firstly, the nature and number of issues that might have become the subject of Undertakings provided by the Employer pursuant to s. 190 of the Act if accepted, would on any reasonable estimation, result in substantial changes to the Agreement and would thereby be invalidated by subsection 190(3)(b) of the Act. Although no firm conclusion could be made in the absence of any actual Undertakings having been provided, the likely difficulties that would accompany the number and nature of potential Undertakings must be considered in the context of being additional to the various “...procedural changes to the document..” that had apparently been made by reSolutions@Work Pty Ltd. In my view Part 2-4 of the Act does not envisage that an agreement having been made pursuant to s.182 of the Act, could be changed in the manner suggested by the correspondence from reSolutions@Work Pty Ltd.
[13] Secondly, as mentioned above, there are some potential difficulties associated with the inadvisable basis upon which the Declaration appears to have been witnessed. Statutory Declarations are documents which must be treated with proper care and responsibility. That care and responsibility extends to all who make, witness, and seek to rely upon Statutory Declarations, as well as those who are required to have due regard for such important documents. I acknowledge and accept that if there is no familial connection between Ben Finucane and Margaret Mary Finucane then this issue becomes more a matter of perception and perhaps merely an unfortunate presentation of the application documentation. In any event, be it either a matter of reality or perception, I am reluctant to allow the Declaration made in this instance to be regarded as appropriate or competent in the circumstances.
[14] Thirdly, the Agreement has not been properly executed. This issue and the provisions of Regulation 2.06A of the Fair Work Regulations 2009 where raised during the Hearing. Unfortunately there has been no basis established upon which FWA can be satisfied that Regulation 2.06A (2) (b) (ii) in particular has been complied with. Although the signature clause of the Agreement contained provisions for the insertion of the date of execution, none was included. Therefore the Agreement has not been properly executed, nor has it been signed in accordance with subsection 185(5) of the Act.
[15] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act. In addition, I believe that the nature and number of any Undertakings that would be needed to rectify identified concerns would result in substantial changes to the Agreement. Therefore the approval sought pursuant to s.185 is refused. Accordingly the application is dismissed.
COMMISSIONER
1 A Handbook for Justices of the Peace in New South Wales, Attorney General’s Department of NSW, published Sydney August 2008, Third Edition, @ page 30.
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