National Union of Workers

[2014] FWC 8400

[2014] FWC 8400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2014/8220)

COMMISSIONER RYAN MELBOURNE, 24 NOVEMBER 2014

Application for approval of the Kiel Industries Pty Ltd & National Union of Workers Enterprise Agreement 2012-2015.

[1] An application has been made for approval of an enterprise agreement known as the Kiel Industries Pty Ltd & National Union of Workers Enterprise Agreement 2012-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by National Union of Workers (NUW). The agreement is a single-enterprise agreement.

[2] Section 185(3) of the Act deals with when an application for approval of an enterprise agreement must be made. Section 185(3) is as follows:

“(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.”

[3] As s.185(3) makes clear, the Commission has a discretion to extend the 14 day time limit for the making of an application for approval of an enterprise agreement.

[4] In the present matter the Agreement was made on 2 July 2014 but was not signed by the employer until 13 November 2014 and by the Union on 17 November 2014. The application for approval of the Agreement was lodged with the Commission on 17 November 2014.

[5] The Employer’s Statutory Declaration in Support of Application for Approval of Enterprise Agreement (F17) was made by Ms Maxine Kiel, Director of Kiel Industries Pty Ltd. Ms Kiel stated that the agreement was made on 2 July 2014. Further, in her response to the question posed in 2.9 as to whether the application was lodged within 14 days of the date the agreement was made, she did not check either box ‘yes’ or ‘no’ but did state as follows:

“Unavailability of relevant personnel, however, the Employer has already been applying the terms of the agreement regardless.”

[6] The reason contended by the employer for filing this application some 17 weeks out of time is vague and lacking detail. In all of the circumstances of this matter I do not consider it sufficient reason to extend the 14 day time limit in s.185(3)(a) by some 4 months.

[7] I also note that the Agreement has not been signed by the employer in accordance with Reg. 2.06A(2) which provides that:

“(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and
(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and
(ii) an explanation of the person’s authority to sign the agreement.

[8] The application for approval is dismissed both on the basis that the application was made out of time and that the Agreement was not signed as required by Reg. 2.06A(2).

Observations on the Agreement

[9] I make a number of observations as to the contents of the Agreement. These observations are not part of the decision to dismiss the application in this matter but are made to assist the parties if they wish to make an enterprise agreement and seek to have it approved by the Commission.

[10] Clause 6.1 of the Agreement describes the group of employees to be covered by the Agreement as all persons “who perform work in or in connection with the rubber, plastic and cable making industry or who are otherwise eligible to be members of the National Union of Workers; and employed by Kiel Industries Pty Ltd at Tramway Road Morwell 3840 or at any other location where this work may be performed”.

[11] The classification structure in the Agreement appears to be limited to non trades employees performing work below the skill level of a tradesperson. The Employer failed to answer question 3.3 on the Form F17 which requires the employer to provide information that identifies how the classifications in the Agreement relate to the classification structure in the modern award.

[12] It appears that the Agreement only provides for wage rates for some of the employees who would be covered by the Agreement. This means that some of the employees who would be covered by the Agreement have no wage rate in this Agreement. For such employees the Agreement must fail the BOOT.

[13] Either the classification structure and wage rates in the Agreement need to be expanded to cover all employees who can be covered by the Agreement or alternatively the description of the coverage of the Agreement in clause 6.1 needs to be redrafted so that it aligns with the classification structure in the Agreement.

[14] Clause 8 stipulates that employees under the terms of this Agreement will not be employed under the terms of an individual contract. Given that as a matter of common law every employee has a contract of employment then it would appear that no employee could be covered by the terms of the Agreement.

[15] The Agreement does not contain a consultation term which meets the requirements of s.205(1) and (1A) of the Act. Therefore the model consultation term would be taken to apply in lieu of clause 14.

[16] Clause 14 - Introduction of Change does not meet the requirements of s.205 and is therefore not a consultation term for the purposes of s.205.

[17] Clause 15 contains incorrect numbering of the sub-clauses within it. Additionally, clause 15 does not provide for any external party to be involved in the dispute resolution process. There is no provision for either party to a dispute to refer to the Fair Work Commission, or any other external dispute resolution body, a dispute which remains unresolved after having been “discussed between the employee, a representative of the head office of the company and the employee’s nominated representative”.

[18] Clause 23.2 contains a provision at 23.2.2 which permits the employer to withhold monies due to the employee if the requisite notice is not given upon termination, without the employee’s consent. I refer to the decision in Hydro Chem Pty Ltd, [2014] FWCA 5163. The employer may want to consider deleting this provision from any future Agreement.

[19] The provisions of Clause 23.2 are repeated as clause 23.9 in identical terms, save a couple of words.

[20] Clause 40.2 contains provision for additional public holidays but qualifies the entitlement to additional public holidays by excluding that entitlement from any employee who is “covered by Federal Agreements”. Given that every employee covered by the Agreement is “covered by Federal Agreements” then no employee covered by the Agreement would be entitled to an additional public holiday. The clause appears to operate so as to exclude the entitlement to an additional public holiday provided for by s.115(b) of the Act.

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