Holmes Nominees (Aust) Pty Ltd T/A Aus Pits
[2012] FWA 5036
•13 JUNE 2012
[2012] FWA 5036 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Holmes Nominees (Aust) Pty Ltd T/A Aus Pits
(AG2012/8785)
COMMISSIONER RYAN | MELBOURNE, 13 JUNE 2012 |
Holmes Nominees (Aus) Pty Ltd Australian Collective Workplace Agreement 2012 - 2015.
[1] An application for approval of the above agreement pursuant to s.185 of the Fair Work Act 2009 (the Act) was filed with Fair Work Australia on 8 June 2012 accompanied by an Employer’s Declaration in Support of the application (Form F17) which was made and sworn by Mr John Holmes, Managing Director for Holmes Nominees (Aus) Pty Ltd (the Applicant).
[2] The Agreement provides that it is to cover employees of the Applicant who are bound by the terms of the Cement and Concrete Products Award 2000 - Transitional (the Award).
[3] The most obvious difficulty with the way in which the Agreement defines the group of employees to be covered is that, as at the test time, there are no employees who are bound by the terms of the Award. However it appears reasonable to presume that the intent of the coverage provision of the Agreement was that the Agreement would cover employees who would have been covered by the Award if that award had applied to the employees.
[4] Clause 5 of the Award provides as follows:
“5. COVERAGE OF AWARD
This award shall apply to persons engaged in connection with the fabrication or manufacture of cement and/or concrete products and/or articles.”
[5] Whilst the language of clause 5 suggests a wide range of classifications, the classification structure of the Award makes clear that the Award is not intended to cover employees in administrative, professional or managerial positions. The classification structure in the Award makes clear that the Award covers production and ancillary employees up to and including trades level and includes leading hands of the trades and non-trades and production employees.
[6] The Form F17 declares that the Agreement covers all employees of the employer other than senior executives. This would appear to be the intent of the Agreement given that the employer has identified the names of the 6 persons elected by the employees of the Applicant for the purposes of bargaining for the Agreement. Two of the named employees are listed on the Applicant’s website as holding the positions of National Design Manager and Estimating Manager.
[7] The Form F17 declares that there are 115 employees who will be covered by the Agreement and that 6 employees cast a valid vote for the approval of the Agreement and that all 6 votes were in favour of approval of the Agreement. Whilst at first glance it might appear that 109 employees simply chose not to vote it appears from information appended to the Form F17 that the Agreement was not approved by a vote of all eligible employees. The material filed with the Form F17 advises that the Agreement was approved by a Committee of Authorised Employees on 30 May 2012.
[8] The application in this matter must be dismissed.
[9] Section 182 of the Act makes clear that all of the employees who will be covered by the Agreement have to be given an opportunity to vote on the approval of the Agreement and that the Agreement is made when a majority of employees who will be covered by the Agreement cast a valid vote to approve the Agreement.
[10] In the present matter the Applicant did not, on its own material, give all employees an opportunity to vote to approve the Agreement. The Applicant sought to have a committee of 6 employees approve the Agreement on behalf of all employees. This is not permissible.
Other observations on the content of the Agreement.
[11] I make the following brief observations on the content of the Agreement to assist the Applicant should it wish to put a proposed agreement to its employees for approval. These observations do not form part of the decision.
● The language of clauses 3 and 4 of the Agreement do not clearly identify the group of employees who are to be covered by the Agreement.
● Clause 3 of the Agreement hints at a possible incorporation of an award into the Agreement but there is nothing in clause 3 or any other clause, including clause 16, which expressly incorporates the terms of any award into the Agreement.
● Clause 5 of the Agreement asserts that the Agreement would come into operation from the day it is lodged with Fair Work Australia. This is not possible given the specific language of s.54(1)(a) of the Act.
● Clause 15 of the Agreement provides that the evidence requirements for personal carers leave are “as per Holmes Nominees (Aust) Pty Ltd Sick Leave Policy current at the time leave is taken.” It is not possible that the BOOT could be satisfied when not only were the contents of the policy not made available but additionally where the employer has the capacity to amend the policy at any time.
● Clause 22 of the Agreement provides for a rate of pay for new casual employees which appears to be less than the relevant modern award rate. The Agreement pays the award rate plus 25% but does not pay any Industry Allowance or any Loadings which may be in the modern award.
● Clause 24 of the Agreement does not identify the powers of Fair Work Australia if it is required to settle a dispute.
● The Agreement does not contain a classification structure nor a wage table. Therefore it would need to be assumed that the minimum wages to be paid to employees are those specified in the relevant modern awards. Given that the Form F17 intended that the Agreement covered all employees then the classification and wage structure from a number of relevant modern awards would need to be considered.
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