National Union of Workers

[2013] FWCA 7423

[2013] FWCA 7423

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(AG2013/2066)

SIEMENS LTD (BAYSWATER - STORES AND WAREHOUSES) ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER BULL	SYDNEY, 25 SEPTEMBER 2013

Application for approval of the Siemens Ltd (Bayswater - Stores and Warehouses) Enterprise Agreement 2013 - Flexibility term explained.

[1] An application has been made for approval of an enterprise agreement known as the Siemens Ltd (Bayswater - Stores and Warehouses) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 21 August 2013, the Commission alerted the Applicant being the National Union of Workers (NUW) as a bargaining representative for the Agreement and the employer to a number of concerns it had with aspects of the Agreement. These issues concerned the ordinary hours of work, public holidays and the individual flexibility arrangement in the Agreement.

[3] Correspondence was received from the NUW on 30 August 2013 and 6 September 2013.

Ordinary hours of work

[4] The Commission notes that the Agreement at clause 12 - Working Time Arrangements, provides for ordinary hours of work that are greater than the ordinary hours of work provided for in the Storage Services and Wholesale Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[5] The NUW has advised that the rates of pay in the Agreement are significantly higher, and compensate for the additional increase in the ordinary hours of work under the Agreement. I am satisfied that employees under the Agreement would be better off overall in respect of this clause.

Public holidays

[6] In its correspondence, the Commission noted that the Agreement did not appear to provide a clause with respect to public holidays and requested an undertaking that the entitlement to public holidays will be in accordance with s.114 of the Act.

[7] The NUW advised that it relies upon clause 5.4 that the Agreement shall be read in conjunction with the National Employment Standards (NES) and that there is nothing in the Agreement to suggest the public holiday provision in the NES would not apply.

Flexibility Term

[8] The Act requires at s.202(1) that an enterprise agreement must include a flexibility term.

[9] The mandated flexibility term is described in the Act as being a term that:

202(1)(a) enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and

(b) complies with section 203.

[10] In its correspondence, the Commission asked for further information concerning the application of clause 24 - Flexibility.

[11] Sub clause 24.1 of the Agreement is in the following terms:

The following clauses of this Agreement provide a standard entitlement which may be modified, within the limits specified in this Agreement, by an employee and the Employer entering into an Individual flexibility arrangement (“the arrangement”):

Clause title Clause number

Family Leave 14.6

[12] The Commission noted in its correspondence, that the Agreement did not appear to contain a clause 14.6 as is stated in the Flexibility clause.

[13] In correspondence from the NUW on 30 August 2013, the Commission was advised that the reference to 14.6 in the Flexibility clause was a typographical error and should refer to clause 13.6 of the Agreement.

[14] Further, the NUW submitted that the flexibility arrangement allows an employee and the employer to extend arrangements to care for family and provided the following example:

For example, the parties may agree to a period of greater than 2 weeks unpaid leave or to a long term rearrangement of working hours.

[15] The Commission sent further correspondence to the NUW and the employer on 30 August 2013, advising that an enterprise agreement does not prevent additional benefits being granted such as an additional 2 weeks of unpaid leave and requested clarification as to what was meant by ‘to a long term rearrangement of working hours’, and that the model flexibility term would be inserted subject to any further comments by the NUW or the employer.

[16] The NUW sent further correspondence to the Commission on 5 September 2013 and submitted that there are at least three ways that the family leave provision can be varied by the flexibility terms for the genuine needs of the employee and employer. The following examples were provided:

a. The Family Leave provision provides that all employees will be entitled to up to 2 weeks’ unpaid leave in the event of a family illness or problem. Under the flexibility term an individual employee and an employer may agree to extend unpaid leave even further. The flexibility term plays an important role in highlighting that an individual employee (and the employer) can agree to vary the 2 week cap.

b. The Family Leave provision allows a “temporary rearrangement of working hours” in the event of family illness or problems. This envisages a short term rearrangement of working hours with a defined end date. In the event that an employee needs to care for a family member with an ongoing illness or problem, the flexibility term would allow the individual employee and employer to agree to an indefinite arrangement to meet the employee’s needs.

c. The Family Leave provision provides at the second last dot point that:

“Any access to time of (sic) in lieu of overtime and make up time shall be subject to guidelines to be developed and agreed between the parties prior to any implementation at the enterprise.”

The flexibility term would allow individual employees and the employer to agree to individual guidelines, including, for example, whether time in lieu of overtime equates to an hour and a half or just equivalent time.

[17] With respect to the Commission’s concerns that the Agreement does not prevent additional benefits being provided, the NUW submitted that they disagreed and that the mere fact that there may be other ways to override an agreement provision does not undermine the fact that the flexibility term provides a way to vary the effect of an Agreement for the genuine needs of the employee and employer.

[18] The NUW further submitted that the flexibility arrangement is the preferable way to vary a provision in an agreement because it clearly highlights to all parties in the agreement that this is an area that individual employees can approach management about and sets out a way to formally record the variation, so as to avoid confusion at a later date.

[19] The NUW also stated that clause 5.3 of the Agreement provides that the parties covered by this Agreement shall not be employed other than under the terms of this Agreement and that this clause restricts the employer from providing different benefits than those expressed in the Agreement. Further the NUW submitted that clause 22 - No Extra Claims prevents an employee from pursuing any extra claim relating to wages and conditions up to the nominal expiry of the Agreement and that the flexibility term is the only way an employee could seek to change the Family Leave provisions.

[20] No correspondence on this matter was received from the employer.

[21] I do not accept the submissions of the NUW that clause 5.3 and clause 22 of the Agreement prevents an additional benefit being granted to an employee and that the flexibility term is the only way an employee and employer could seek to change the Family Leave provisions. The Agreement is a set of minimum conditions that cannot be further reduced. The Agreement does not prevent an employer from granting an additional benefit such as a bonus payment or the amount of unpaid leave.

[22] However, I am prepared to accept on the basis of the correspondence by the NUW that an ability for the employer and employee to enter into an individual flexibility arrangement concerning how time in lieu or overtime is paid may provide flexibility in the Agreement in order to meet the genuine needs of the employee and the employer.

[23] The Agreement covers the employer’s stores personnel. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[24] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[25] The National Union of Workers being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers this organisation.

[26] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 2 October 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

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