Jillcar Pty Ltd T/A Semaphore Hotel
[2010] FWA 2715
•8 APRIL 2010
[2010] FWA 2715 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/20741)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 8 APRIL 2010 |
The Jillcar Pty Ltd Collective Agreement Number One (2009).
[1] On 30 December 2009 Jillcar Pty Ltd trading as Semaphore Hotel (Jillcar) lodged an application for approval of the Jillcar Pty Ltd Collective Agreement Number One (2009), pursuant to section 185 of the Fair Work Act 2009 (the Act). The application was referred to me for consideration.
[2] The application was made on Jillcar’s behalf by Mr Cannon of Cannon Corporate Solutions.
[3] The Employer's Declaration (Form F17) which accompanied the application advised that the agreement was made on 29 December 2009 and that it had application to only 2 employees. This form did not advise of the date on which these employees were provided with the agreement or were told of the voting arrangements.
[4] On 28 January 2010 I requested from Jillcar advice about the date upon which the agreement, in its final form, was provided to employees, together with the date upon which employees were advised of the vote and the voting methodology. I also sought advice from Jillcar with respect to the total number of employees to be engaged under the agreement. Jillcar was asked to provide a list of full-time, part-time and casual employees on its payroll as at 29 December 2009.
[5] On 18 February 2010 Jillcar replied to this request. It advised that employees were provided with the agreement and advised of the vote arrangements on 7 December 2009. Jillcar attached an employee listing as at 29 December 2009. There were a total of 18 employees on this list. 6 of these were full-time employees and the remaining 12 were casual employees.
[6] Jillcar subsequently provided additional information in the following terms:
“The method and criteria for the Collective Agreement’s preparation and distribution to eligible employees, plus voting methodology was as instructed by Ian Cannon, of Cannon Corporate Solutions. As you are already aware, Ian Cannon prepared the agreement and acted as the bargaining agent for Jillcar Pty Ltd.
At the time of distribution of the final agreement and notification of the voting date/method to employees on the 7th December 2009, two employees were eligible to vote. All other employees of Jillcar Pty Ltd were employed under individual agreements. The breakdown of the company’s employee’s individual agreements as at the 7th December 2009 was as follows:
Total Employees: 22
Employees under individual agreements (AWA’s and ITEA’s): 20
Employees eligible to vote for Collective Agreement: 2
These two employees were employed as follows.
One employed under Federal Manager’s Award
One employed under Hotels’ Clubs Etc. Award
The distribution of the agreement and vote was carried out prior to the 31/12/2009, being the nominal expiry date for existing individual agreements.”
[7] The application was subsequently listed for a hearing on 12 March 2010. At this hearing, Ms Pyle, a Director and Mr Jensch, the Accounts Manager, appeared. Jillcar advised that the vast majority of its employees were, as at 29 December 2009, covered by Australian Workplace Agreements (AWAs) or Individual Transition Employment Agreements (ITEAs) which had not reached their nominal expiry dates. I requested clarification of these arrangements for each employee. I also requested advice about the content of the agreement relative to the application of the no disadvantage test. It is not necessary that I deal with that last issue in this decision.
[8] Jillcar provided information to me on 19 March 2010. This information relevantly stated:
“Please find attached an employee listing as at 7/12/2009 when the agreement was distributed. This listing will vary from the earlier one provided to you as requested at the voting date of 29/12/2009. The reason for this is our instruction was to allow voting of the agreement by only those employees who could hold the agreement for the required 21 days, so the 7/12/2009 was an employee snapshot at that time, and to continue to offer ITEAs to those employees who commenced employment during the rest of the month of December. Please call me if this above description is unclear.”
[9] On 23 March 2010 I sought further advice from Jillcar in the following terms:
“[2] I note that this list of employees appears to exclude 3 employees’ names shown on the payroll list as at 29 December 2009, pursuant to your 18 February 2010 advice.
[3] As the vote on 29 December 2009 only included two employees, can you please explain this discrepancy? On the information available to me it appears that there were 5 employees who may have been eligible to vote relative to the agreement.”
[10] On 30 March 2010 Jillcar responded:
“The 3 additional employees on the payroll listing as at 29th December 2009 were employed after the Collective Agreement was distributed on the 7th December 2009. They were employed under ITEAs.
Our advice from Ian Cannon for the distribution and voting on the agreement was that only eligible employee’s who could hold the agreement for 21 days prior to the voting date were able to vote. Staff employed after the agreement distribution date would not be eligible to vote and could still be employed under ITEAs until 31/12/2009.
This is why the employee listing supplied on the 19th March 2010 only shows the employment status of employees on the payroll as at the 7th December 2009. From the employee list as at 7th December 2009 only those who were not under individual agreements were offered the agreement to hold for the 21 days until voting on the 29th December 2009. Staffs employed after the agreement distribution date (7th December 2009) were not offered the agreement or opportunity to vote.
If the employees hired after the distribution date of the Collective Agreement (7th December 2009) should have been offered the Collective Agreement on the dates they were employed and opportunity to vote for it on the 29th December 2009 we were unaware.”
[11] Whilst I doubt the position adopted by Jillcar with respect to its capacity to offer ITEAs in December 2009, it is again not necessary that I deal with that matter here.
[12] Section 173 relevantly states:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).”
[13] The notification time to this agreement was 7 December 2009. Even if I accept that the notice of employee representational rights could have been given only to 2 employees as at that date, subsections 180(1) and (2) state:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”
[14] Consequently, employees engaged since 7 December 2009 had to be notified of the voting process and provided with a copy of the agreement.
[15] Further, section 181 states:
“181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”
[16] This means that all the employees who would be covered by the agreement at the time of the vote had to have the opportunity to vote for it.
[17] On information before me it appears that this was a minimum of 5 employees as distinct from the 2 employees who are involved in the vote.
[18] The agreement making process set out in the Act is a mandatory requirement. In this instance I am not satisfied that this requirement has been met and accordingly, I am not prepared to approve the agreement.
[19] In the event that Jillcar seek to repeat the agreement making process and make a new application for an agreement approval, I recommend that alternative advice is sought with respect to the employees who would be covered by the agreement and involved in the approval process. Further, that advice is sought with respect to the requirement that any agreement must meet the "Better Off Overall Test" in comparison with the modern Hospitality Industry (General) Award 2010. In its current form the agreement would not meet this test.
[20] The application is dismissed on the basis set out in this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
J Pyle and T Jensch for Jillcar Pty Ltd.
Hearing Details:
2010.
Adelaide:
March 12.
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