NT Proform

[2012] FWA 3165

[2012] FWA 3165

FAIR WORK AUSTRALIA

DECISION

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

NT Proform
(AG2012/3324)

COMMISSIONER CLOGHAN PERTH, 13 APRIL 2012

Application for approval of a single-enterprise agreement.

[1] On 8 February 2012, NT Proform (“the Applicant”) made application for approval of a single enterprise agreement to be known as the NT Proform Constructions Pty Ltd Construction Site Enterprise Agreement 2012-2016 (“proposed Agreement”).

[2] Fair Work Australia (FWA) must approve an enterprise agreement pursuant to s.186 of the Fair Work Act 2009 (“The FW Act”) if the requirements in that section, s.187 and s.188 are met.

[3] Having reviewed the application, I had a number of concerns with the application and those concerns were the subject of a telephone conference on 26 March 2012.

[4] At the conference, the Applicant was represented by Mr Alvarez.

[5] I continued the conference with Mr Alvarez on the following day, 27 March 2012.

[6] While the content of the proposed Agreement has much to commend it, I highlighted to Mr Alvarez the following and advised him that I was unable to approve the proposed Agreement.

Nominal Expiry Date

[7] The proposed Agreement has a nominal expiry date of 31 December 2016. Paragraph 186(5)(b) of the FW Act prohibits approval of an agreement for more than 4 years after the day on which it is approved by FWA. The proposed Agreement is unable to have an expiry date of 31 December 2016.

Sections 181 and 182 of the FW Act

[8] The Applicant has declared that the date on which the last notice of representational rights was given to employees who will be covered by the proposed Agreement was 8 February 2012. This was also the date on which voting commenced and concluded. Subsection 181(2) of the FW Act provides that at least 21 days must elapse after notice of representational rights are given to employees before the Applicant is able to request employees, employed at the time, to vote to approve the proposed Agreement.

Part 3: Better Off Overall Test (BOOT)

[9] The Applicant did not complete this part of its declaration in support of the proposed Agreement.

Clause 13: Classifications and rates of pay

[10] The proposed hourly rate of pay is between $23 and $25 (which is inclusive of all allowances) and is intended to remain constant until 31 December 2016. This clause, it is attested, was approved by all employees despite there being no reference as to what future wage increase, if any, there would be between date of approval and 31 December 2016.

Clause 19: Overtime

[11] Clause 19 provides that in formulating the hourly rate of pay in Clause 13, all employees would not receive any additional payment for overtime up to 50 hours per week worked on Monday to Saturday. Where employees work beyond 50 hours per week on a Sunday, employees would receive an additional $5.00 per hour. The Applicant has not provided, for reasons already outlined, how this clause (together with others) meets the BOOT.

Clause 12: Redundancy

[12] The proposed Agreement specifies that, “in accordance with s.64(4)(b) of the NES...that the redundancy provisions of the NES do not apply to employers and employees” covered by the proposed Agreement. The proposed Agreement proceeds to set out what does apply.

[13] While the Applicant has advised where the subclause has been “lifted” from, he was unable to provide an explanation for such a subclause. If “s.64(4)(b)” is a reference to the FW Act, it is an error.

[14] Finally, Clause 12: Redundancy of the proposed Agreement sets out that employees who complete 4 years or more continuous service receive 8 weeks redundancy pay. Such a provision is less than the National Employment Standards.

[15] For the above reasons, I am not satisfied that the requirements of the FW Act relating to an enterprise agreement have been met. In particular, I am satisfied that the provisions of s.182(2)(c) and (d), s.181(2) and s.186(5)(b) have not been met. Accordingly, I must dismiss the application.

COMMISSIONER

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