Maxwell Transport Group
[2010] FWA 1201
•22 FEBRUARY 2010
[2010] FWA 1201 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/16423)
COMMISSIONER LEWIN | MELBOURNE, 22 FEBRUARY 2010 |
Maxwell Transport Group Collective Workplace Agreement 2006-2009.
[1] On 15 October 2009, Maxwell Transport Group lodged an application in Fair Work Australia for the approval of the Maxwell Transport Collective Workplace Agreement (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). An employer’s declaration in support of the application was provided with the application. I received the application for approval of the Agreement on 16 October 2009.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act. The application is subject to the Agreement passing the no-disadvantage test contained in Item 4 of Schedule 7 of the Transitional Act. The reference instrument for the purposes of comparison and determining whether or not the Agreement passes the no-disadvantage test is the Transport Workers’ Award 1998.
[3] Upon reading the terms of the Agreement and the reference instrument I became concerned that the Agreement did not pass the no-disadvantage test. These concerns included the operation of overtime, shiftwork, casual loading and long distance driving provisions under the Agreement. These clauses of the Agreement, in my view, are disadvantageous to employees in comparison to the equivalent clauses contained in the reference instrument. In addition, the Agreement does not contain provision for redundancy or parental leave while the reference instrument does. Also, some allowances provided for in the reference instrument were not provided for in the Agreement. Other allowances, while contained in both the Agreement and reference instrument, were lower in the Agreement as compared with the reference instrument. I also had concerns about the Company’s failure to comply with the pre-approval requirements set out in Chapter 2, Part 2–4, Division 4, Subdivision A of the Act.
[4] The matter was listed for Hearing in relation to the abovementioned concerns at 12.00 pm on Monday 30 November 2009. At the Hearing Mr Barnes and Mr Maxwell appeared on behalf of Maxwell Transport Group. The employees were not represented at the Hearing. My Associate wrote to the Company after the Hearing on 30 November 2009.
[5] The failure of the Company to meet the pre-approval requirements was addressed at the Hearing and in the abovementioned letter of my Associate. The company was advised in the letter that it may be necessary to re-commit the Agreement in order to comply with the statutory requirements contained in Chapter 2, Part 2–4, Division 4, Subdivision A of the Act. The reason for this is as follows.
[6] Section 186 of the Act requires that in order to approve an enterprise agreement, (not a greenfields agreement), an agreement must have been genuinely agreed to by the relevant employees.
[7] Section 188 of the Act provides that for an enterprise agreement to be approved, Fair Work Australia must be satisfied that the agreement has been genuinely agreed to by the relevant employees having regard to specific statutory requirements. The provisions of s.188(a)(ii) of the Act are set out below:
“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given);
…
[8] Section 181 of the Act is in the following terms:
“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.
[9] At question 2.6 of the Form 17—Employer’s Declaration in Support for Approval of Enterprise Agreement (the Declaration), filed in the Tribunal on 15 October 2009, the Company declared that employer first requested that the employees approve the agreement by voting for iton 8 October 2009.
[10] Section 173 of the Fair Work Act 2009 (the Act) requires that an employer who will be covered by a proposed enterprise agreement must take all reasonable steps to notify employees who will be covered by the agreement of the right to be represented by a bargaining agent as will be observed above, by force of s.181(2) of the Act, a request to vote cannot be effective for approval purposes where the vote occurs less than 21 days after the last notice of representational rights is given. At 2.7 of the declaration, the Company declared that the employer provided the last notice of the employees’ representational rights pursuant to s.173(1) of the Fair Work Act 2009 on 13 October 2009. The Agreement was made on 7 October, 6 days before that notice.
[11] Issues relation to the no-disadvantage test were also raised both in the Hearing and the letter of 30 November 2009. The Company was advised that undertakings would need to be made by the company in order for the agreement to be considered for approval.
[12] No correspondence was received in Chambers in response to the letter of 30 November 2009. My Associate contacted the Company on 8 January 2010 to check the status of the application for approval of the Agreement. My Associate received verbal advice from Mr Barnes of the Company that the Company was considering whether or not it would withdraw the application. Further attempts to contact Mr Barnes in relation to the status of matter were made on 28 January 2010 to no avail.
[13] On the material before me, I cannot be satisfied that the provisions of sections 188(1)(a)(ii) and 181(2) have been met. The statutory requirements are mandatory. There is no discretion vested in Fair Work Australia to approve an agreement if those requirements have not been met. Moreover, I cannot be satisfied that the Agreement passes the no-disadvantage test.
[14] For the reasons stated the Agreement cannot be approved.
COMMISSIONER
Appearances:
Mr Jason Barnes, General Manager of Maxwell Group
Hearing details:
2009
30 November
Melbourne
1 Item 2, Part 1, of Schedule 2.
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