J. Reynolds Holdings Pty. Ltd. T/A John Reynolds Electrics
[2014] FWCA 2661
•24 APRIL 2014
[2014] FWCA 2661 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.210—Enterprise agreement
J. Reynolds Holdings Pty. Ltd. T/A John Reynolds Electrics
(AG2014/675)
J. REYNOLDS HOLDINGS PTY. LTD. T/A JOHN REYNOLDS ELECTRICS AND ETU ENTERPRISE AGREEMENT 2010-2014
Electrical contracting industry | |
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 24 APRIL 2014 |
Application for variation of the J. Reynolds Holdings Pty. Ltd. t/a John Reynolds Electrics and ETU Enterprise Agreement 2010-2014.
Introduction
[1] J. Reynolds Holdings Pty Ltd trading as John Reynolds Electrics (Applicant) is covered by the J. Reynolds Holdings Pty Ltd trading as John Reynolds Electrics and ETU Enterprise Agreement 2010 – 2014 (Agreement). It has applied pursuant to s. 210 of the Fair Work Act 2009 (Act) for approval of certain variations to the Agreement. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is noted in the decision to approve the Agreement1 as being covered by the Agreement in accordance with s. 201(2).
[2] The variations to the Agreement for which approval is sought are significant in number. The variations affect both the wages and conditions of employment of employees who are covered by the Agreement. Some of the variations are consequential. It is not necessary to reproduce the variations in the body of this decision. The CEPU opposes the approval of the variations to the Agreement and I permitted it to make both oral and written submissions setting out the basis of its opposition to the approval of the variations.
[3] I have concluded that I am satisfied that each of the requirements in ss. 210 and 211 that they are relevant to this application for the approval of a variation to the Agreement have been met. I will approve the variations and these are my reasons for doing so.
Background
[4] The Applicant lodged an earlier application for approval of variations to the Agreement essentially in the same form as the present application2. The variations the subject of the first application, including a variation to the no extra claims clause of the Agreement, were approved by votes of employees, however the application was subsequently withdrawn because it was apparent on the face of the application and supporting material, that certain procedural requirements had not been undertaken by the Applicant.
[5] As to this application, a document setting out the proposed variations to the Agreement was emailed by the Applicant to all employees who are covered by the Agreement on 6 March 20143. Also on that day employees were sent by email a letter which advised the employees of the place, date and time of a vote for the approval of the variations and that the vote would be conducted by a show of hands4. On 17 February 2014 a meeting of employees who are covered by the Agreement was held, during which the Applicant explained to employees the proposed variations5. This was in addition to earlier meetings which had been held to facilitate the first application for approval of variations to the Agreement.
[6] Two votes of employees who are covered by the agreement were conducted on 18 March 2014. The first vote was undertaken to determine whether the employees approved a variation to the no extra claims clause. The second vote undertaken was to determine whether the employees approved the substantive variations to the Agreement6. Five employees were covered by the Agreement at the time of voting, all 5 employees cast valid votes and all 5 employees voted to approve all of the variations7.
The CEPU objections
[7] The CEPU has advanced three broad grounds of objection. The first ground is that the Applicant failed to issue a notice of employee representational rights (NERR) to employees who are covered by the Agreement before asking those employees to vote on proposed variations to the Agreement.
[8] The second ground of objection is that clause 4 of the Agreement, which deals with no extra claims, acts as a bar to the Applicant proposing variations to the Agreement. Moreover the Applicant’s attempt to overcome the effect of the no extra claims clause by seeking to temporarily set aside that clause in accordance with the reasoning of Justice Bromberg in Marmara v Toyota Corporation Australia Limited8 was ineffective because the Applicant did not first seek approval of the Commission of the variation to the no extra claims clause, before proposing further variations to the Agreement.
[9] The third ground of objection is that the variation to the Agreement results in the Agreement as varied not passing the better off overall test with the consequence that the variation should not be approved. In furtherance of this ground the CEPU highlighted the removal of a number of terms and conditions of the Agreement brought about by the variations, and alterations to other terms and conditions in the Agreement which it submitted, resulted in the Agreement as varied not passing the better off overall test.
The Applicant’s argument in support of approval of the variations
[10] The Applicant did not address the first ground of objection raised by the CEPU and for reasons that will become apparent it was not necessary for it to do so. In its employer’s statutory declaration filed in support of the variation to the Agreement, the Applicant addressed the statutory requirements for the approval of the variation, including the better off overall test. The Applicant identified the provisions of the Agreement which are to be altered by the variation and set out those provisions which were more beneficial and those which were less beneficial.
[11] As to the issue of the no extra claims clause, the Applicant submitted that it had followed the two-step process9 outlined by Justice Bromberg in the Toyota decision and consequently the no extra claims clause in the Agreement was not a bar to it pursuing the variations.
Relevant statutory provisions
[12] Subdivision A of Division 7 of part 2 – 4 of the Act contains the relevant provisions governing this application. Those provisions provide as follows:
207 Variation of an enterprise agreement may be made by employers and employees
Variation by employers and employees
(1) The following may jointly make a variation of an enterprise agreement:
(a) if the agreement covers a single employer—the employer and:
(i) the employees employed at the time who are covered by the agreement; and
(ii) the employees employed at the time who will be covered by the agreement if the variation is approved by the FWC;
(b) if the agreement covers 2 or more employers—all of those employers and:
(i) the employees employed at the time who are covered by the agreement; and
(ii) the employees employed at the time who will be covered by the agreement if the variation is approved by the FWC.
Note: For when a variation of an enterprise agreement is made, see section 209.
(2) The employees referred to in paragraphs (1)(a) and (b) are the affected employees for the variation.
Variation has no effect unless approved by the FWC
(3) A variation of an enterprise agreement has no effect unless it is approved by the FWC under section 211.
Limitation—greenfields agreement
(4) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.
208 Employers may request employees to approve a proposed variation of an enterprise agreement
(1) An employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it.
(2) Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method.
209 When a variation of an enterprise agreement is made
Single-enterprise agreement
(1) If the affected employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees who cast a valid vote approve the variation.
Multi-enterprise agreement
(2) If the affected employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees of each individual employer who cast a valid vote have approved the variation.
210 Application for the FWC’s approval of a variation of an enterprise agreement
Application for approval
(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the variation; and
(b) a copy of the agreement as proposed to be varied; and
(c) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the variation is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
Signature requirements
(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.
211 When the FWC must approve a variation of an enterprise agreement
Approval of variation by the FWC
(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:
(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and
(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;
unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.
Note: The FWC may approve a variation under this section with undertakings (see section 212).
Modification of approval requirements
(2) For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:
(a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and
(b) comply with subsection (5); and
(c) disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).
(3) The following provisions:
(a) section 180 (which deals with pre-approval steps);
(b) subsection 186(2) (which deals with the FWC’s approval of enterprise agreements);
(c) section 188 (which deals with genuine agreement);
have effect as if:
(d) references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and
(e) references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and
(f) references in section 180 to subsection 181(1) were references to subsection 208(1); and
(g) the words “if the agreement is not a greenfields agreement—” in paragraph 186(2)(a) were omitted; and
(h) paragraph 186(2)(b) were omitted; and
(ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and
(hb) subparagraph 188(a)(ii) were omitted; and
(j) the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.
(4) Section 193 (which deals with passing the better off overall test) has effect as if:
(a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and
(b) subsection (3) were omitted; and
(c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and
(d) the reference in subsection (6) to section 185 were a reference to section 210.
(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.
Regulations may prescribe additional modifications
(6) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.
212 FWC may approve a variation of an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of a variation of an enterprise agreement has been made under section 210; and
(b) the FWC has a concern that the variation does not meet the requirements set out in section 211.
Approval of agreement with undertakings
(2) The FWC may approve the variation under section 211 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any affected employee for the variation; or
(b) result in substantial changes to the variation.
Signature requirements
(4) An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.
213 Effect of undertakings
(1) If:
(a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and
(b) the agreement covers a single employer;
the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.
(2) If:
(a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and
(b) the agreement covers 2 or more employers;
the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.
214 When the FWC may refuse to approve a variation of an enterprise agreement
(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:
(a) a person committing an offence against a law of the Commonwealth; or
(b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.
(2) Subsection (1) has effect despite section 211 (which deals with the approval of variations of enterprise agreements).
(3) If the FWC refuses to approve a variation of an enterprise agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.
215 Approval decision to note undertakings
If the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation, the FWC must note in its decision to approve the variation that the undertaking is taken to be a term of the agreement.
216 When variation comes into operation
If a variation of an enterprise agreement is approved under section 211, the variation operates from the day specified in the decision to approve the variation.
Consideration
The NERR objection
[13] The first ground of objection raised by the CEPU may be dealt with in short compass. There is no requirement for an employer to issue a NERR before it seeks approval of employees for a variation of an agreement. Section 188(a)(ii) provides that one of the factors, about which the Commission must be satisfied, in determining whether employees have genuinely agreed to an agreement, is whether the requirements in s. 181(2) have been met. Section 181(2) provides that a request to employees to approve an agreement must not be made until at least 21 days after the day on which the last NERR under s. 173(1) in relation to the agreement is given.
[14] Section 211(3)(hb) has the effect of altering the operation of s. 188 of the Act by omitting for the purposes of considering an application for approval of a variation of an agreement, of subparagraph 188(a)(ii). In consequence s. 181(2) has no work to do in relation to an application to vary an agreement, and it follows that an employer is not required to issue to employees who will be covered by a varied agreement, a NERR before asking those employees to approve the variation.
Objection based on the Toyota decision
[15] Clause 4 of the Agreement deals with no extra claims and is in the following terms:
4 No Extra Claims
The parties intend this Agreement to cover all matters pertaining to wages and conditions and claims that could be included in an enterprise agreement, during the term of this Agreement, and further agree that no other claims (whether award or over award) that could be included in an enterprise agreement, shall be made by either party prior to the nominal expiry date of this Agreement. For the avoidance of doubt, it is agreed between the parties that up to the nominal expiry date of this Agreement:
(a) The parties will not pursue any extra claims, either award or over award, and will not seek any changes whatsoever to conditions of employment of the Employees; and
(b) Neither the Employees, nor any party to this Agreement, will engage in or seek to engage in protected action in relation to the performance of any work covered by this Agreement.
[16] It is not in dispute that clause 4 of the Agreement is, in terms and effect, substantially the same as the provision that was the subject of consideration in Toyota. It is for this reason that the Applicant sought to apply the two-step process held by Bromberg J to be an effective means by which to facilitate a variation to an agreement which might otherwise be prohibited by a no extra claims clause in the terms considered in Toyota.
[17] In setting out the two-step process Justice Bromberg said:
It is then necessary to consider whether the terms of the no extra claims component of cl 4 foreclose the capacity of the parties to the Agreement to consensually access the Subdiv A variation process. The terms of cl 4 preclude any further claims “in relation to wages or any other terms and conditions of employment”. Those terms do not exclude the capacity of the parties to effectuate a variation to cl 4 itself including by removing it. That can be done without breaching the enterprise agreement and if it is done, the parties will have unfettered access to the Subdiv A variation process in relation to desired variations to wages or any other terms or conditions of employment.
It can be seen therefore that the relevant terms of cl 4 have not ousted the capacity of Toyota or its employees to access the Subdiv A variation process in order to vary wages and other terms and conditions of employment specified by the Agreement. The relevant terms of cl 4 effectively impose an extra step in the process of achieving a desired variation, but do not foreclose access in either a technical or practical sense to the Subdiv A variation process. There is therefore no inconsistency between the no extra claims component of cl 4 and the FW Act.
That a two-step process should be required is not without a rational foundation. The relevant terms of cl 4 were designed to provide more certainty of outcome and more stability to Toyota as well as to its employees. The loss of that additional but removable certainty provided to all parties, has the potential to advantage one side to the relative detriment of the other at one point in time, but also to reverse that advantage at another point in time. That is a matter which is apt for separate consideration and agreement.
The applicants contended that the relevant terms of cl 4 were intended to entrench the no extra claims component of the clause so as to preclude its variation. The applicants accepted that was not done expressly but should nevertheless be regarded as the intention which is to be implied. I reject that contention in part based on the wording of the clause but also because that construction would lead to its invalidity and to adopt it would be contrary to the approach to construction which s 46(1)(c) of the AI Act requires.
. . .
Whilst the no extra claims component of cl 4 restricts the current capacity of Toyota and its employees to vary the wages and other terms and conditions of employment contained in the Agreement, there is no restriction on cl 4 being varied or removed in accordance with the variation process provided by the FW Act. Accordingly, as cl 4 is not entrenched by the Agreement and may be removed, it does not foreclose the capacity of Toyota and its employees to vary the wages and other terms and conditions of employment contained in the Agreement in accordance with the process provided by the FW Act, should they choose to do so. Clause 4 is therefore not inconsistent with the FW Act and is valid.10
[18] Without expressing a view about the correctness of His Honour’s conclusions as to the effect of the no extra claims clause and the two-step process, I will proceed on the basis that decision is correct. 11
[19] The Applicant argued that the two-step process described in Toyota was effective if employees first voted to approve a variation to a no extra claims clause and then voted separately to approve further variations to the Agreement. The Applicant said that it was unnecessary for the variation to the no extra claims clause to be approved by the Commission before embarking upon a vote on the substantive variations to the Agreement because the variation to the no extra claims clause is made on the day a majority of employees affected by the variation vote to approve the variation12.
[20] This argument misunderstands the two-stage process outlined in Toyota and misunderstands the operation of the Act and the effect of agreement and variation approvals provisions thereunder. Firstly, though it is true that a variation is made when a majority of affected employees who cast a valid vote approve the variation, the variation does not come into operation on that day. A vote to approve a variation has no legal effect 13 and the variation so approved is not enforceable until the Commission approves the variation under s. 211 and then only from the day specified in the decision to approve the variation14. That affected employees cast a valid vote to approve the variation does not give legal effect to the variation of the Agreement and until the date of operation assigned to a variation, the Agreement continues to operate in its pre-varied form.
[21] Second, the reference in His Honour’s decision in Toyota to the “variation process provided by the FW Act”15 should, in my view, properly be understood as meaning all of the provisions which are relevant to a variation of an agreement becoming operative and given legal effect. It would not be enough therefore to merely obtain the majority support of affected employees for the variation. It would undermine the important role given to the Commission by the Act of reviewing variations to an agreement for compliance with statutory preconditions, if an employer was simply required to seek the approval of a majority of employees for a variation and then to act as though that approval gave legal effect to the variation. It follows that by not seeking approval of the Commission of the variation to the no extra claims provision of the Agreement, the variation was ineffective at the time the Applicant proposed further variations of the Agreement. That conduct was, on the authority of Toyota, likely to be a breach of clause 4 of the Agreement. But it does not follow that the breach acts as a bar to the Commission approving the variation, including the variation to the no extra claims clause.
[22] Putting to one side the serious public interest qualification in s. 211(1), there is no other express provision of the Act which would prevent the approval of the variation that is the subject of this application by reason of the Applicant’s breach of clause 4. Section 214 confers discretion on the Commission to refuse to approve a variation if the Commission considers that compliance with the terms of an agreement as proposed to be varied may result in, relevantly, a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth. Although the Applicant may be liable to pay a pecuniary penalty for contravening s. 50 of the Act because of its breach of the no extra claims provision of the Agreement, the contravention of the Act did or will not arise because of “compliance with the terms of the agreement as proposed to be varied”.
[23] I have given consideration to whether the contravention of the no extra claims provision had any effect on the genuineness of the agreement of the employees to the variation. However on the basis of the material before me I am satisfied that the employees were well aware of the purpose for which the no extra claims provision was sought to be varied and the intention of the Applicant to comply with that which it thought was the correct application of the two step process described in Toyota. The employees voted on the variation to the no extra claims clause separately to the consideration of and voting for the substantive variations to the Agreement. The breach of the no extra claims clause by the Applicant, did not in my view, affect the genuineness of the vote to approve the variations, nor did it mislead the employees into voting for the variation. Certainly no evidence to that effect was offered by the CEPU.
[24] The only basis upon which I might determine not to approve the variation is if I am satisfied that there are serious public interest grounds for not approving the variation. At first blush it might readily be said that the contravening conduct of the Applicant in proposing the variations to the Agreement to employees in the face of the no extra claims clause, is a serious public interest ground that would warrant a decision not to approve the Agreement. But in this case I do not believe any serious public interest grounds are enlivened. I have reached that view for the following reasons.
[25] Firstly, the Applicant was genuinely trying to comply with the two-step process set out in Toyota. Second, the contravention was inadvertent rather than deliberate. Third, employees covered by the Agreement have twice voted to approve the variation to the no extra claims clause and have twice separately voted to approve the substantive variations to the Agreement. It is apparent they support the variations. Fourth, declining to approve the variations to the Agreement would merely delay an outcome that employees covered by the Agreement have twice voted for, as the employer and employees could rectify the effect of contravening conduct by correctly applying the two-step process. Therefore other than delay, no purpose is to be served by not approving the Agreement. Finally, the contravening conduct is not excused by approval of the variations. The Applicant remains liable to be pursued for the contravention, although the utility of such action and the public interest to be served is questionable. In all of the circumstances I am not satisfied that there are any serious public interest grounds which would permit me to not approve the variation. Even if I am incorrect in this view, I would not exercise my discretion not to approve the variation for the reasons given immediately above.
Better off overall test objection
[26] The CEPU’s objection based on the better off overall test is founded principally upon a comparison between the Agreement and the Agreement as varied. This approach misunderstands the better off overall test.
[27] If the variation to Agreement is to be approved by the Commission the varied Agreement must inter alia pass the better off overall test. Further, if the Commission has concerns that the varied Agreement does not pass the better off overall test, the Commission may accept a written undertaking and approve the variation16.
[28] Section 193 as modified by s. 211 (4) provides as follows:
193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
FWC must disregard individual flexibility arrangement
(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.
. . .
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the Agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
[29] The test time for purposes of assessing whether the Agreement as varied passes the better off overall test is 26 March 2014, the date on which the application for approval of the variation was made.
[30] Relevantly the varied Agreement will pass the better off overall test if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the varied Agreement would be better off overall if the varied Agreement applied to the employee than if the relevant modern award applied to the employee.
[31] The application of the better off overall test is not to be applied as a line by line analysis. Rather it is a global test requiring consideration of the advantages and disadvantages to award covered employees and prospective award covered employees. The application of the better off overall test therefore requires the identification of terms of the varied agreement which are more beneficial to the relevant employees when compared to the relevant modern award, the terms of the varied Agreement which are less beneficial and then an overall assessment of whether each relevant employee would be better off under the varied Agreement17.
[32] It is doubtless the case that employees covered by the Agreement will not be better off overall under the varied Agreement when compared to the Agreement. But that is not the relevant comparison. Although the variations to the Agreement have the effect of altering wage rates and particular terms and conditions of employment, the variations, taken together are not so significant as to render any employee who is or will be covered by the varied Agreement disadvantaged under the varied Agreement when compared to the Electrical, Electronic and Communications Contracting Award 2010 (Award). Indeed the contrary is the case. In my view, the relevant employees remain better off overall under the varied Agreement when compared to the Award because the wage rates payable under the varied Agreement combined with the improved conditions of employment that remain under the varied Agreement have that result. I am therefore satisfied, that each Award covered employee, and each prospective Award covered employee, for the varied Agreement would be better off overall if the varied Agreement applied to the employee than if the Award applied to the employee.
Conclusion
[33] I am satisfied that each of the requirements of ss. 210 and 211 that they are relevant to this application for the approval of a variation to the Agreement have been met. I approve the variation which is attached to the decision as Annexure A. A consolidated version of the agreement as varied is also attached to this decision. In accordance with s. 216 of the Act the variation will operate on and from 24 April 2014.
DEPUTY PRESIDENT
Appearances:
K. McCosh for the Applicant
K. Reidy for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Hearing details:
Melbourne.
2014.
4 April
Further Submissions
Applicant 8 April 2014
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 8 April 2014
Annexure A
1 [2012] FWAA 364
2 See AG2014/3804 lodged on 26 February 2014
3 Statutory declaration at Q2.1
4 Ibid at Q2.8
5 Ibid at Q2.3
6 Ibid at Q2.5
7 Ibid at Q2.7
8 [2013] FCA 1351
9 Ibid at [122] – [125]
10 Ibid and at [142]
11 It is to be noted that the decision in Toyota is currently the subject of an appeal to a Full Court of the Federal Court of Australia
12 See section 209 (1)
13 Except that the approval starts time running within which an application to approve the variation must be made; s. 210(3)
14 See section 207(3) and 216
15 [2013] FCA 1351 at [142]
16 See section 212
17 See Re: Armacell Australia Enterprise Agreement 2010[2010] FWAFB 9985; National Tertiary Education Industry Union v University of New South Wales[2011] FWAFB 5
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