Morgan’s Group Pty Ltd
[2011] FWA 1433
•4 MARCH 2011
[2011] FWA 1433 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Morgan’s Group Pty Ltd
(AG2010/15646)
COMMISSIONER DEEGAN | CANBERRA, 4 MARCH 2011 |
Morgan's Group Enterprise Agreement 2010.
[1] On 9 December 2010 an application was made pursuant to s.185 of the Fair Work Act 2009 for the approval of the Morgan’s Group Enterprise Agreement 2010 (the Agreement).
[2] The Agreement provided that the terms and conditions of employees covered by it were subject to the relevant Modern Award 1 and the National Employment Standards (NES). The only substantial change purported to be made to the employees’ entitlements was set out in clause 10 of the Agreement which affected the long service leave arrangements for the employees.
[3] Clause 10 purported to remove employees from the coverage of the Long Service Leave (Portable Schemes) Act 2009 (ACT) and provide them with an equivalent accrual and payment entitlement plus an additional payment of 2% on application for that leave. The Agreement scheme was to be operated by the employer and, as a consequence, would not have been portable.
[4] At the hearing of the approval application on 16 December 2010 I indicated that it was my view that the Agreement could not be approved as it excluded a term of the NES relating to long service leave, contrary to s.55(1) of the Act. I drew the attention of the employer’s representative to a recent decision 2 of FWA concerning a clause of an agreement that purported to affect long service leave provisions provided under state legislation. I indicated that I agreed with the findings in that decision and had taken the preliminary view that I could not approve the Agreement.
[5] Having indicated this view I indicated that I was prepared to adjourn the matter to allow the applicant’s representative to consider the terms of the decision and the applicable legislative provisions and advise me whether they wished the matter to be relisted for further argument. I indicated that in the absence of any further argument I could not be satisfied that the Agreement complied with the s.186(c) of the Act and that I would dismiss the application for approval. Despite a number of attempts to elicit a response from the applicant’s representative there has been no contact since 16 December 2010.
[6] Since the applicant’s representative apparently has no wish to advance any further argument on the matter I have considered the approval application on the basis of those matters raised before me at the hearing of 16 December 2010.
[7] The application for approval of the Agreement is dismissed as I am not satisfied that the requirements of s.186(c) of the Act have been met. I am not satisfied that the terms of the Agreement do not contravene s.55 of the Act (which deals with the interaction of the NES and enterprise agreements).
COMMISSIONER
Appearances:
Mr Christopher Cannell, Employee Representative
Ms Kathy Ruston, Morgans Group Pty Ltd General Manager
Mr David Morphett, DJM IR
Hearing details:
Thursday, 16 December 2010
Fair Work Australia, Canberra ACT
1 Cleaning Services Award 2010 (MA000022).
2 St Mary’s Rugby League Club Ltd [2010] FWA 9314 (McKenna C).
Printed by authority of the Commonwealth Government Printer
<Price code A, PR507320>
0