Hydraulic & Pneumatic Pty Ltd

[2013] FWC 4443

[2013] FWC 4443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hydraulic & Pneumatic Pty Ltd
(AG2013/7362)

COMMISSIONER RYAN MELBOURNE, 5 JULY 2013

Application for approval of the Hydraulic and Pneumatic Pty Ltd Workplace Agreement 2013-2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Hydraulic and Pneumatic Pty Ltd Workplace Agreement 2013 - 2016 was filed with the Commission on 28 June 2013.

[2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement sworn by Mr Peter Montgomery, Managing Director for Hydraulic and Pneumatic Pty Ltd. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of Employee Representational Rights (a Notice) to employees on 8 February 2013.

[3] Amendments to the Fair Work Act which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) states as follows:

“Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.”

[4] Schedule 2.1 of the Fair Work Regulations sets out the terms of a Notice as follows:

“Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174 (6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies — include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

[If a low-paid authorisation applies to the agreement — include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument — include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

● the nominal expiry date of your existing agreement has passed; or

● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].”

[5] The Notice issued to employees in relation to this Agreement does not accord with the requirements of Schedule 2.1 of the Regulations and thus does not comply with the requirements of s.174(1A).

[6] Non compliance with s.174(1A) by the employer means that there is no valid enterprise agreement before me.

[7] The application in this matter is therefore dismissed.

Observations

[8] The following observations may assist the employer and employees to make an enterprise agreement that will be approvable by the Commission. These observations do not form part of the decision in this matter.

[9] Clause 6 of the Agreement provides that:

“Where the client of a particular work location or site that requires Hydraulic & Pneumatic to pay a specific site rate of pay or allowances, those conditions will be made by the company to it’s (sic) employees covered by this agreement.”

[10] Whilst this provision could be of benefit to employees where the site rates and allowances are higher than those provided for in this Agreement the provision could operate to the detriment of employees where the site rates and allowances are lower than those provided for in this Agreement. This raises an issue in relation to the BOOT.

[11] Clause 8(e) of the Agreement requires employees to work reasonable overtime. However the clause does not repeat the provisions of the Act in relation to an employee reasonably refusing to work overtime. Whilst clause 7.6 provides that the NES applies it would appear that clause 8(e) at the very least misrepresents the full operation of the NES in relation to employer requests to work overtime and an employee’s right to reasonably refuse such requests.

[12] Clause 8(g) provides for an 8 hour rest period after overtime. Clause 40.4 of the relevant modern award provides for a 10 hour rest period after overtime. Clause 8(g) raises an issue in relation to the BOOT.

[13] Clause 22, which deals with personal/carers leave contains the following provision:

“The employee shall, as soon as reasonably practicable and within two (2) hours of the commencement of such absence inform the Company of inability to attend, and as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.”

[14] Whilst s.107(5) of the Act permits enterprise agreements to include terms relating to the kind of evidence that an employee must provide to an employer there is no provision within s.107 which permits an enterprise agreement from containing a term which provides for notice requirements which are more onerous on an employee than the notice requirements of s.107(2) of the Act. The requirement in clause 22 that an employee must notify the employer of their absence “within two (2) hours of the commencement” is more onerous than the requirement of s.107(2).

[15] Where an enterprise agreement seeks to replace the operation of s.107(2) of the Act with a more onerous notice requirement such a term of an enterprise agreement would appear to contravene s.55 of the Act and an enterprise agreement with such a term could not be approved by the Commission given the operation of s.186(2)(c) of the Act.

[16] I note that clause 25 of the Agreement refers to Fair Work Australia. This should read Fair Work Commission.

COMMISSIONER

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