Hazell Bros Group Pty Ltd
[2009] FWA 406
•28 SEPTEMBER 2009
[2009] FWA 406
The attached document replaces the document previously issued with the above code on 28 September 2009.
Clause 6 of the decision has been amended.
Margaret Scanlon
Associate to Senior Deputy President Watson
Dated: 1 October 2009
[2009] FWA 406 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/13229)
FLEET MAINTENANCE FIELD SERVICE COLLECTIVE WORKPLACE AGREEMENT 2009-2011
Building, metal and civil construction industries | |
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 28 SEPTEMBER 2009 |
Application for approval of the Fleet Maintenance Field Service Collective Workplace Agreement 2009-2011.
[1] An application has been made for approval of an enterprise agreement known as the Fleet Maintenance Field Service Collective Workplace Agreement 2009-2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hazell Bros Group Pty Ltd. The agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] The information in Form F17 indicated that fewer than 21 days (s.181(2)) passed between the giving of a notice of representational rights (s.173(1)) and the employees being asked to approve the agreement (s.181(2)), in which case the agreement could not be approved given the need for genuine agreement by employees (s.186(2)), and given that genuine approval (s.188(a)(ii)) requires compliance with s.181(2) of the Act. The dates in Form F17 did not appear to be correct. They appeared to refer to the date upon which employees were advised of the time/place/method of voting (at the start of the access period in s.180(4)), rather than the date upon which the employees were asked to approve the agreement (s.181(2)), that being the start of the voting for the proposed agreement. 2 This is evident by the fact that, on the dates in Form F17, the voting process occurred over 27 days, which is unlikely for an agreement covering eight employees. As a result, I sought clarification of the dates contained in Form F17. The clarification was that the date upon which the employees were asked to approve the Agreement (s.181(2)) was in fact the date upon which the agreement was made. On the basis of this date, there has been compliance with s.181(2) of the Act.
[4] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not separately provide for a number of allowances prescribed in the Vehicle Industry - Repair, Services and Retail Award 2002. 3 However, having regard to the wage rates in the Agreement and the incidence of conditions warranting payment of award allowances, I am satisfied that the Agreement does not or would not result, on balance, in a reduction in the overall terms and conditions of the employees who are covered by the Agreement under that reference instrument.
[5] In Appendix A, the Agreement contains a work/life balance provision said to be a flexibility term. It is not a flexibility term at all, let alone one which complies with s.203 of the Act.
[6] The absence of a flexibility term, which complies with s.203 of the Act does not prevent approval of the Agreement. However, absent a flexibility term which meets the requirements of s. 203, the model flexibility term is taken to be a term of the Agreement (s.202(4)). This is consistent with clause 861 of the Explanatory Memorandum which states:
“The model flexibility term that is prescribed by the regulations will be taken to be a term of the agreement where an enterprise agreement does not include a flexibility term that complies with the requirements under clause 203 (subclause 202(4)).”
[7] In accordance with s.201(1)(b)(i), when approving the Agreement, I note that the model flexibility term is taken, under s.202(4), to be a term of the Agreement.
[8] The Agreement is approved and, in accordance with s.54, will operate from 5 October 2009. The nominal expiry date of the Agreement is 31 August 2011.
SENIOR DEPUTY PRESIDENT
Appearances:
K Dillon for Hazell Bros Group Pty Ltd.
Hearing details:
2009.
Melbourne:
September 28 (by telephone).
1 Item 2, Part 1, of Schedule 2.
2 Explanatory Memorandum at paragraph 736.
3 AP824308.
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