Mr Stephen Gary Poke
[2011] FWA 235
•14 JANUARY 2011
[2011] FWA 235 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Mr Stephen Gary Poke
(AG2010/19594)
COMMISSIONER LEWIN | MELBOURNE, 14 JANUARY 2011 |
Edrill Enterprise Agreement 2010.
[1] This decision concerns an application for approval of the Edrill Enterprise Agreement 2010 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was made by Stephen Gary Poke. The Agreement is a single enterprise Agreement. The application was lodged in Fair Work Australia on 12 November 2010.
[2] Applications for approval of single enterprise agreements pursuant to s.185 of the Act are subject to the better off overall test as contained in s.193(1) of the Act which is set out below:
“When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”
[3] The reference instrument for establishing whether the Agreement passes the better off overall test is the Mining Industry Award 2010. Upon reading the terms of the Agreement and the reference instrument, I became concerned that the Agreement did not pass the better off overall test. My concerns related to penalty rates and allowances; casual rates of pay; issues arising out of the ‘loaded’ pay rates contained in the Agreement and the reasonable additional hours provisions in the Agreement. I referred the Agreement to the Fair Work Australia Enterprise Agreements Unit for detailed analysis.
[4] The Enterprise Agreements Unit compiled a research analysis document which compared the terms of the Agreement to those of the reference instrument. This document indicated a number of deficiencies contained in the Agreement causing the Agreement not to pass the better off overall test.
[5] On 21 December 2010 I wrote to Mr Poke of Edrill Pty Ltd (Edrill) and Mr Bill Fitzgerald of the Australian Mines and Metals Association (AMMA), who was nominated the in the application as a contact person for the applicant, to inform them that I concluded that the Agreement did not pass the better off overall test. A copy of the abovementioned research analysis document prepared by the Enterprise Agreements Unit was attached to that correspondence. However, I invited Mr Poke and Mr Fitzgerald to make any submissions in response to my letter and the attached research note by the close of business on 12 January 2010. That letter included a link to the provisions of the Act governing approval of enterprise Agreements. No such submissions were received.
[6] For the reasons stated, I am not satisfied that each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the Award applied to each employee as prescribed by s.193 of the Act.
[7] The application for approval of the Agreement is therefore refused.
[8] An Order dismissing the application will issue.
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