Hao Yun Pty Ltd Employee Enterprise Agreement
[2010] FWA 383
•28 JANUARY 2010
[2010] FWA 383 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/20361)
Crust Gourmet Group Enterprises Enterprise Agreement
(AG2009/20385)
Trinity Group Pty Ltd Employee Enterprise Agreement
(AG2009/20389)
SJ & KA Ashkar Pty Ltd Pty Ltd Employee Enterprise Agreement
(AG2009/20699)
COMMISSIONER MCKENNA | SYDNEY, 28 JANUARY 2010 |
Application for approval of a single-enterprise agreement by People in SmallBiz
[1] These four applications for the approval of single-enterprise agreements, made pursuant to s185 of the Fair Work Act 2009, have all been lodged by the same bargaining representative appointed by the various employers. The employers’ representative named in the applications is Robert Sharp, Human Resources Manager, People in SmallBiz.
[2] On reading the materials filed in support of the applications and the agreements themselves, I was concerned about various aspects of them. In the circumstances, I listed the matters on 21 January 2010 to hear anything that might be put by or on behalf of the applicants in relation to those concerns. There was no appearance by or on behalf of any of the applicant employers, and nor did I receive any adjournment application. In circumstances where neither the applicant employers nor their bargaining representative appeared for the listing of the matters, I decided to determine the applications ex parte, on the papers.
[3] I decline to approve the applications. These are my reasons.
FORMULAIC DECLARATIONS
[4] The applications are formulaic in their responses to information required in the statutory declarations that comprise the “Employer’s declaration in support of application for approval of enterprise agreement” (Form F17). For example, in each Form F17, the following information, in my bolded text, is found in each declaration:
as to cl 2.3:
2.3 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to ensure that the relevant employees were given, or had access to, the written text of the agreement and any other material incorporated by reference in the agreement.
All employees and the bargaining agent(s) were provided with a copy of the proposed Enterprise agreement at least 7 (seven) days before the vote was taken.
as to cl.2.4:
2.4 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to notify all relevant employees of the time and place at which the vote was occur [sic] and the voting method to be used. (s.180(3))
All employees and their bargaining agent(s) were provided with a letter confirming the time, place and voting method at least 7 (seven) days before the vote was taken.
and as to cl.2.5:
2.5 Please specify the steps taken by the employer to explain the terms of the agreement, and the effect of those terms, to relevant employees (s.180(5). Note: your answer must include information on the manner in which the explanation took account of particular circumstances and needs of relevant employees (For example, where the employees were from a non-English speaking background, were young employees or did not have a bargaining representative)
All employees and their bargaining agent(s) were provided with a letter indicating that if under legal age that they were required to provide the information to their legal guardian. Likewise, if from a non-English speaking background and would like further explanation,further [sic] assistance would be provided.
[5] It may be noted that in the Forms F16, “Application for the approval of enterprise agreement”, the following information is included in relation to each application:
5. Please provide details of any employee organisations that were bargaining representatives for the agreement
Nil, all employees acted as their own bargaining representatives. Their contact details and declarations are found in multiple form 18s attached to this lodgement.
[6] Despite the information in the Forms F16 that the employees did not appoint a bargaining agent, cl.2.3, cl.2.4 and cl.2.5 of the Forms F17 formulaically suggest that materials were provided to the employees’ bargaining agent(s) – thereby raising questions about the reliability of the information in each Form F17.
[7] The typographical error “explanation,further” at cl.2.5 of the Form F17 is common to each of the declarations, suggesting this information, together with the other formulaic answers, is no more than a set-piece, template answer in response to the question properly asked of each individual declarant – rather than representing the steps, if any, that actually were taken in relation to the making of each application.
[8] Had there been an appearance when I listed the applications, it is possible such matters could otherwise have been satisfactorily addressed – perhaps, for example, by the provision of additional supporting statutory declarations. As noted at the outset of this decision, there was, however, no appearance by or on behalf of any of the applicants for the approval of the respective enterprise agreements. In the absence of any additional supporting information, I am left with applications that are bereft of specific information such as would allow a proper consideration of whether certain mandatory prerequisites for approval, and the prerequisites as to the timing of them, have, in fact, been met. In the circumstances where template answers have been used in this manner by the applicant employers in the Forms F17, such as in the examples I have given, I am not requisitely satisfied that various requirements for approval have, in fact, been met.
EMPLOYEE DECLARATIONS
[9] I have a further concern about the reliability of the declarations filed in support of the applications for approval. Each application (other than AG2009/20699, which has no supporting declarations) is accompanied by multiple copies of the Form F18 (“Declaration of employee organisation in support of application for approval of enterprise agreement”), in which the declarants each purports as follows:
1.3 Were you a bargaining representative for a member or members of your organisation who is an employee or are employees and are covered by the agreement?
YES
1.4 Were you entitled to represent the industrial interests of the employee or employees referred to in question 1.3 in relation to work that will be performed under the agreement?
[X] YES
[ ] NO
[10] I very much doubt the reliability of the assertions by each of the declarants that he or she was “a bargaining representative for a member or members of your organisation who is an employee or are employees and are covered by the agreement”. I similarly doubt the assertions by each of the declarants that he or she was each “entitled to represent the industrial interests of the employee or employees referred to in question 1.3 in relation to work that will be performed under the agreement”.
[11] Using the first-numbered application (AG2009/20361) as an example, all the statutory declarations specify, by way of address details in the preamble to the Form F18, that the declarants’ address is that of the workplace, in King Street, Melbourne. The declarations otherwise indicate the declarants’ occupations are, for example, “staff assistant”, “store assistant”, “staff” or “shop assistant”. As indicated by their address details and miscellaneous occupations in the preamble to each statutory declaration, the Forms F18 have been completed by individual employees, rather than by anyone who could be described as a representative of an employee organisation appropriately entitled to represent the employees’ industrial interests. The employee declarants, all from non-English speaking backgrounds, plainly could not have understand what they were signing in declaring themselves to be representatives of an employee organisation. In all likelihood, the employees probably were simply asked by the employer, or instructed, to sign the Form F18. I note, in this respect, the Forms F18 each appear to have had the answers at cl.1.3, cl.1.4 and cl.1.5 pre-typed, by contrast with the other, hand-written details completed by each declarant.
STATUTORY DECLARATION REQUIREMENTS
[12] Putting aside the form and content of the Forms F17 and F18 in support of the applications, a number of the statutory declarations in these applications have not been properly declared. A person wishing to use a statutory declaration must make the declaration in accordance with the Statutory Declarations Act 1959 and the Statutory Declarations Regulations 1993. For example, the Statutory Declarations Act provides that a statutory declaration must be in the prescribed form and must be made before a prescribed witness. The Statutory Declarations Regulations provide as follows in relation to persons before whom a statutory declaration may be made:
STATUTORY DECLARATIONS REGULATIONS 1993 - SCHEDULE 2
Persons before whom a statutory declaration may be made
(regulation 4)
Part 1 Occupations
Item | Occupation |
101 | Chiropractor |
102 | Dentist |
103 | Legal practitioner |
104 | Medical practitioner |
105 | Nurse |
106 | Optometrist |
107 | Patent attorney |
108 | Pharmacist |
109 | Physiotherapist |
110 | Psychologist |
111 | Trade marks attorney |
112 | Veterinary surgeon |
Part 2 Other persons
Item | Person |
201 | Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public |
202 | Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1955 ) |
203 | Bailiff |
204 | Bank officer with 5 or more continuous years of service |
205 | Building society officer with 5 or more years of continuous service |
206 | Chief executive officer of a Commonwealth court |
207 | Clerk of a court |
208 | Commissioner for Affidavits |
209 | Commissioner for Declarations |
210 | Credit union officer with 5 or more years of continuous service |
211 | Employee of the Australian Trade Commission who is: |
212 | Employee of the Commonwealth who is: |
213 | Fellow of the National Tax Accountants’ Association |
214 | Finance company officer with 5 or more years of continuous service |
215 | Holder of a statutory office not specified in another item in this Part |
216 | Judge of a court |
217 | Justice of the Peace |
218 | Magistrate |
219 | Marriage celebrant registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961 |
220 | Master of a court |
221 | Member of Chartered Secretaries Australia |
222 | Member of Engineers Australia, other than at the grade of student |
223 | Member of the Association of Taxation and Management Accountants |
224 | Member of the Australian Defence Force who is: |
225 | Member of the Institute of Chartered Accountants in Australia, the Australian Society of Certified Practising Accountants or the National Institute of Accountants |
226 | Member of: |
227 | Minister of religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961 |
228 | Notary public |
229 | Permanent employee of the Australian Postal Corporation with 5 or more years of continuous service who is employed in an office supplying postal services to the public |
230 | Permanent employee of: (a) the Commonwealth or a Commonwealth authority; or |
231 | Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made |
232 | Police officer |
233 | Registrar, or Deputy Registrar, of a court |
234 | Senior Executive Service employee of: |
235 | Sheriff |
236 | Sheriff’s officer |
237 | Teacher employed on a full-time basis at a school or tertiary education institution |
238 | Member of the Australasian Institute of Mining and Metallurgy |
[13] The Form F17 in the first-numbered application (AG2009/20361) is the only statutory declaration that appears, on its face, to have been properly witnessed by a person before whom a declaration may be made, in as much as it was declared before a pharmacist.
[14] In the second-numbered application (AG2009/20385), for an agreement to cover the Crust Gourmet Pizza Bar at Williamstown, Victoria, the employer’s declaration has been witnessed by a person whose occupation is described as a “Fast food Retail employee” – which not an occupation or office contemplated in the Statutory Declarations Act. In the third-numbered application (AG2009/20389), for a Muffin Break outlet at Olympic Park, NSW, there is no information at all about the witness details, just a signature. The statutory declaration in support of the fourth-numbered application (AG2009/20699), for Jamaica Blue Café, in Campbelltown, NSW, may, or may not, have been witnessed by a person before whom a statutory declaration made be made; there is no information one way or the other as to that witness’s occupation or contact details within the statutory declaration, contrary to the requirements of the Statutory Declarations Act.
PREFERRED HOURS
[15] Putting aside my concerns about the formulaic responses, and the form and content of the statutory declarations in support of the applications for the approval of the agreements (which, of themselves, would lead me to decline to approve the applications), I would, in any event, decline to approve the agreements which contain provisions concerning “preferred hours”. The agreements in AG2009/20361, AG2009/20385 and AG2009/20389 contain provisions concerning preferred hours. (Curiously, although AG2009/20699 does not contain a preferred hours clause, additional information on this topic for the purposes of the no disadvantage test was filed on 24 December 2009 in relation to this application).
[16] The preferred hours clause is in the following terms:
Preferred Hours Arrangement
a) The Company understands that employees may have personal circumstances, such as family, or schooling responsibilities, that determine the days and times which employees prefer to work, in order to balance personal circumstances.
b) Subject to agreement between the employee and the Company, an employee may elect preferred hours to suit their personal circumstances. This election must be in writing to the company.
c) If an employee elects to work preferred hours, they will be paid the preferred hours arrangement rate of pay in attachment B. These rates of pay exclude late night and weekend penalty rates.
d) If an employee on a preferred hours arrangement arranges to change a rostered shift with another employee, the employee is deemed to have changed their preferred hours arrangement to the changed shift time.
e) Employees who have elected preferred hours arrangements have the right to modify or withdraw their election, in writing to the company.
[17] In Bendy Q P/L t/s Jamaica Blue Knox City & Ors[2009] FWA 1869, Whelan C recently considered a number of applications for the approval of enterprise agreements which appear, from the decision, to follow a similar, but not identical, template to the applications before me. Whelan C said this in relation to the preferred hours arrangements:
[41] It is not, in my view, appropriate nor does it pass the no disadvantage test, to include in an agreement a general provision which removes penalty provisions from the employees’ rate of pay on the basis that they have nominated certain hours during which they are available to work. If the employer requires work to be performed during those hours and the employee is able to perform that work then that is a normal incident of employment and not a special arrangement which might be covered by either section 65 or the type of arrangements covered by section 203. It is notable that if employees were to be engaged under these ‘preferred hours’ arrangements they would be paid less than if the relevant award applied.
[18] I note also that in Bupa Care Services, ANF and HSU Enterprise Agreement 2009 [2010] FWA 16 Smith C recently considered a preferred hours arrangement, albeit the clause differed from the provisions of these agreements. In declining to approve the agreement, Smith C noted:
[17] Against this background, it can be seen that this proposed clause represents a cost saving rather than a benefit. It would be difficult to suggest that an employee would see the benefit in being paid less than that which would ordinarily apply. In short, it is the gift of employment that the employer is offering provided it is at a discounted rate from the safety net. This is a concept which, in my view, has far reaching implications for the operation of the safety net of wages and conditions.
[19] I respectfully concur with the approach to preferred hours adopted in these quotes, and generally, in Bendy Q P/L t/s Jamaica Blue Knox City & Ors and Bupa Care Services, ANF and HSU Enterprise Agreement 2009. To the extent three of the agreements contain preferred hours arrangements, they, self evidently, fail the no disadvantage test - given the displacement of entitlement to higher rates that otherwise would attach to the performance of work during those hours.
[20] I would dismiss three of the applications on the basis of the preferred hours provisions alone, albeit I note Whelan C identified a number of other concerns with the applications that were before the Tribunal in Bendy Q P/L t/s Jamaica Blue Knox City & Ors. Many of those concerns relevantly also arise in relation to these applications, and would similarly operate as bars or impediments to approval. However, I do not consider it necessary to address those miscellaneous issues, given my view that the applications for approval fail so manifestly on other grounds.
CONCLUSION
[21] For the foregoing reasons, approval of the enterprise agreements in each of these matters is declined. The proceedings are concluded.
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