Luturn Pty Ltd T/A Primo Port Wakefield Abattoir
[2011] FWA 676
•1 FEBRUARY 2011
[2011] FWA 676 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Luturn Pty Ltd T/A Primo Port Wakefield Abattoir
(AG2011/5081)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 1 FEBRUARY 2011 |
Primo Port Wakefield Abattoir Pty Ltd Enterprise Agreement (Security).
[1] An application for approval of an enterprise agreement known as the Primo Port Wakefield Abattoir Pty Ltd Enterprise Agreement (the Agreement) has been made by Luturn Pty Ltd T/A Primo Australia Port Wakefield Abattoir (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement and is to cover the employer’s security employees (“the relevant employees”). The Security Services Industry Award 2010 1 (the Award”) has been nominated by the employer as the modern award that covers the relevant employees.2 I will return to this issue shortly.
[2] The Form F17 Employer’s Declaration indicates that no notice of representational rights was provided to the employees and this was confirmed by Mr Grant Manners, Human Resources Advisor, who appeared for the employer at the approval hearing. 3 Section 173(1) of the Act provides that:
“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.”
[3] Section 181(2) of the Act requires that employees not be requested to approve a proposed enterprise agreement until at least 21 days after the day on which the last notice of representational rights was given to an employee who will be covered by the agreement. Section 186 of the Act specifies the general requirements for approval of an enterprise agreement and, in s.186(2) of the Act, provides that Fair Work Australia (FWA) must be satisfied that the agreement has been genuinely agreed to by employees. In order for FWA to be satisfied that an agreement has been genuinely agreed to by the relevant employees, one of the requirements is that s.181(2) of the Act must have been complied with. 4
[4] There is no discretion to waive the requirement for a notice of representational rights to be issued, and the failure to issue the required notice means that the application for approval of the Agreement must fail.
[5] The Liquor Hospitality and Miscellaneous Union (LHMU) attended the approval hearing on 23 January 2011 and was granted leave to intervene on the basis that one of the relevant employees was a member of the LHMU. In addition to addressing the failure to issue a notice of representational rights, Ms Larissa Harrison on behalf of the LHMU, put submissions that the Agreement did not pass the better off overall test as required by s.186(2)(d) of the Act. This was also the basis of a number of questions I put to Mr Manners. At the time, all parties and FWA were proceeding on the basis that the Award applied to the relevant employees and I indicated that, subject to receipt of further information from Mr Manners about the application of the classification structure in the Agreement, I would indicate in this decision whether the Agreement passes the better off overall test. It was my view that this may provide some guidance to the parties in any renegotiation of an enterprise agreement.
[6] Section 193 of the Act sets out the requirements in order for an enterprise agreement to pass the better off overall test, and includes the requirement that “... each award covered employee and each prospective award covered employee ... would be better off overall if the agreement applied than if the relevant modern award applied to the employee.”
[7] I have had the opportunity to consider the issue of the relevant modern award in more detail since the hearing and have concerns as to whether the Award does in fact apply to the relevant employees. The parties’ attention is drawn to clause 4 concerning the coverage of the Award, and in particular clause 4.3, which states:
“To avoid doubt, this award does not apply to an employer merely because that employer, as an incidental part of a business that is covered by another modern award, has employees who perform functions referred to in clause 4.2.” 5
[8] I have also considered whether the employees may be covered by the Meat Industry Award 2010 6 or the Miscellaneous Award 20107 and my preliminary view is that the coverage of the relevant employees under both these instruments is problematic having regard to the stated coverage of each of them. However, I also note the terms of s.163(4) of the Act, which states:
“The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award.”
[9] Given that the issue of award coverage was not raised with the employer or the LHMU at the approval hearing, and in light of my conclusion that the Agreement cannot be approved in any event, it is not appropriate to deal with the matter in further detail at this stage. The preliminary views expressed herein are to alert the parties to this issue in any future negotiations for a new agreement.
[10] The application for approval of the Agreement is dismissed.
DEPUTY PRESIDENT
1 MA000016
2 At 3.1 of the Form F17 Employer’s Declaration
3 Tr at PN [7] - [10]
4 Section 188(a)(ii) of the Act.
5 Clause 4.2 includes various functions included in the security services industry.
6 MA000059
7 MA000104
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