MP & HE Services Pty Ltd

[2015] FWC 6495

[2015] FWC 6495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MP & HE Services Pty Ltd
(AG2015/855)

DEPUTY PRESIDENT GOSTENCNIK BRISBANE, 7 OCTOBER 2015

Application for approval of the MP & HE Services Pty Ltd Employee Collective Agreement 2015 – application dismissed.

[1] This is an application by MP & HE Services Pty Ltd (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act) seeking the approval of the Fair Work Commission (the Commission) of a single-enterprise agreement known as the MP & HE Services Pty Ltd Employee Collective Agreement 2015 (the Agreement). The application was lodged on 15 April 2015.

[2] This matter was listed for hearing as I had a number of concerns regarding the application. Mr Kevin Tomkins represented the Applicant at the hearing.

[3] In the Form F17 Employer’s Declaration filed on 15 April 2015, Mr K Tomkins, General Manager, stated that the employees had been provided with a final draft of the Agreement on 12 February 2015. He also stated that the employees had been provided with a Notice of Employee Representational Rights (NERR) on 24 February 2015 and that the commencement of the vote for the Agreement’s approval was on 22 March 2015.

[4] On 22 April 2015, an email was sent from the Commission to the Applicant raising a number of concerns in relation to the Agreement. The concerns included:

• Question 2.5 of the Form F17 failed to provide details of the action that was taken to notify all relevant employees of the date and place at which the vote was to occur and the voting method to be used;



• Clause 4 of the Agreement provided that the nominal expiry date of the Agreement be five years from the date the Agreement comes into operation. However, s.186(1) of the Act provides that the nominal expiry date cannot exceed four years from the date of approval of the Agreement by the Commission;



• Clause 25 of the Agreement in relation to the Dispute Settlement Procedure was inconsistent with the requirements set out in s.186(6) of the Act. Clause 25 did not expressly allow for settlement of disputes in relation to the Agreement and the National Employment Standards (NES);



• The Agreement did not appear to define or describe a shift worker for the purposes of the NES, as required by s.196 of the Act;



• Clause 8 was inconsistent with the requirements set out in the Act;



• The Applicant was asked to confirm if clause 7.2 (Company Policy), clause 21 (Drug and Alcohol Policy) and clause 24 (Company Safety Policies) were intended to be incorporated into the Agreement and to confirm the steps taken and on what date those steps were taken to ensure that employees were given, or had access to, the various company policies and procedures during the seven day period ending immediately before the start of the voting process;



• The rates of pay for a Year 4 Adult Apprentice set out in the Agreement may contravene s.206 of the Act. Section 206 requires that the base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate;



• The Machine Operator employee rates of pay equal the rates of pay in the Modern Award. The Agreement did not offer annual leave loading and therefore these employees would not be better off overall. The Agreement also offered shift penalties and casual loading at a lower rate than the Modern Award and if employees were required to work regular shift work or were employed on a casual basis they may not be better off overall under the Agreement.

[5] In the email sent to the Applicant on 22 April 2015, the Applicant was asked to submit an amended Form F17 together with undertakings in relation to the concerns raised, particularly in relation to clause 4, clause 25, shift workers, and in relation to the policies set out in clauses 7, 21 and 24 and the concerns expressed under the Better Off Overall Test (BOOT). The Applicant was also directed to seek views of all known bargaining representatives regarding any proposed undertakings.

[6] On 4 May 2015, the Applicant provided amended undertakings addressing the nominal expiry date, the dispute settlement term, annual leave, the company policies and the BOOT concerns as expressed above.

[7] On 12 May 2015, an email was received from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) objecting to the approval of the Agreement on the grounds that no NERR was given to members of the CEPU that were employees of the Applicant.

[8] On 12 May 2015, a further email was sent to the Applicant noting additional concerns with the Agreement, particularly in relation to the Applicant’s failure to adequately answer Question 2.3 in the Form F17. It was again requested that an amended Form F17 be submitted by close of business on Wednesday, 13 May 2015.

[9] An amended and unsigned Form F17 was lodged by the Applicant on Thursday, 14 May 2015. This amended Form F17 stated that, on 6 January 2015, each employee was notified by email and via the employee bargaining representatives that a vote would be at the office of 28 Morgan Street, Rockingham. It also stated that, on 30 January 2015, voting forms were left in the reception area for each employee together with the Commission Guidelines on making an Agreement, copies of the Agreement and notification of employee representative rights. The Applicant failed, however, to describe the steps taken to give employees notice of their right to be represented by a bargaining representative under Question 2.3 of the Form F17. It stated that the last NERR was given to an employee who would be covered by the Agreement on 24 February 2015, that the date for voting commenced on 22 March 2015 and that the Agreement was made on 6 April 2015.

[10] At the hearing on Thursday, 25 June 2015 a further issue arose as to whether the CEPU should have been involved in the negotiations as an employee bargaining representative. I asked the Applicant and the CEPU to provide a list of employees covered by the Agreement who were employed at the time the Agreement was being negotiated and another list of current employees who were covered by the Agreement. These lists were to assist me in assessing whether or not any of the employees were members of the CEPU.

[11] The lists were provided on 1 July 2015 and 10 July 2015 but to date no further information has been provided by the Applicant despite various attempts made by my chambers to contact the parties.

[12] On 10 July 2015, my Associate contacted Mr Tomkins of the Applicant by email requesting he advise the Applicant’s intention to progress with the application by close of business on Monday, 13 July 2015.

[13] On 11 July 2015, Mr Tomkins replied to my Associate by email as follows:

‘We will be proceeding, and are current working with the union to finalise any undertaking that may be required we will be in a position by Tuesday 14 July 2015 to have the agreements finalised. Unless of course this is not the correct procedure to follow.’

[14] On 16 July 2015, my Associate contacted Mr Tomkins requesting that he provide an update on the further materials/undertakings to be filed in this application. No response was received to this email.

[15] On 29 July 2015, my Associate again contacted Mr Tomkins requesting he advise of the progress of the further material to be filed and indicating that if no response or further materials are filed, I may determine the application in the materials currently before me. No response was received to this email.

[16] On 20 August 2015, my Associate again contacted Mr Tomkins advising him, in summary, that if we did not hear from him by close of business on Friday, 21 August 2015, I would make a determination based on the information presently available.

[17] Based on the materials provided, I am not satisfied that the statutory requirements of the Act have been met.

[18] The application for approval of the Agreement is dismissed.

DEPUTY PRESIDENT

Appearances:

K. Tomkin for MP & HE Services Pty Ltd.

M. Rose for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Hearing details:

2015.

Perth:

June 25.

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