Omeo Aboriginal Pty Ltd
[2021] FWC 4953
•17 AUGUST 2021
| [2021] FWC 4953 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Omeo Aboriginal Pty Ltd
(AG2021/5552)
DEPUTY PRESIDENT CROSS | SYDNEY, 17 AUGUST 2021 |
Application for approval of the Omeo Aboriginal Enterprise Agreement 2021 - 2025.
[1] Omeo Aboriginal Pty Ltd (the Applicant) filed a Form F16 application (the Application) for the approval of the Omeo Aboriginal Enterprise Agreement 2021-2025 (the Proposed Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth)(the Act). In addition to the Form F16, the Applicant also filed an Form F17, a copy of the signed Proposed Agreement, and supplementary documents relevant to the Application.
[2] On 18 June 2021, my Chambers emailed to the Applicant and the appointed Bargaining Representative a list of apparent issues that I considered warranted submissions or other responses from the Applicant prior to consideration of the Application (the Initial Issues). These issues related to the terms of the Proposed Agreement, the National Employment Standards (NES) and the better off overall test (BOOT). A copy of the email enclosing Directions and the Initial Issues is replicated below:
Notes from Chambers of Deputy President Cross: A. This email is sent to the Applicant, and all Bargaining Representatives who are listed on the file for this agreement. B. Each party must always copy the other party/parties in every email sent to Chambers. This will ensure efficient management of your s.185 application. C. References may be made below to an Undertaking. Information is provided on the Fair Work Commission’s website as to What is an Undertaking? D. More information on making and bargaining agreements can be found on the Fair Work Commission’s website: Making an agreement | FWC Main Site. E. This matter may be capable of being heard on the papers, and a Hearing date will only be listed if required. A separate Notice of Listing and Directions will follow in due course if a Hearing is required. |
Dear Parties,
Introduction
1. Omeo Aboriginal Pty Ltd (Applicant) made an application for the Omeo Aboriginal Enterprise Agreement 2021 - 2025.
2. The Fair Work Commission has identified issues with the Proposed Agreement. Please note Deputy President Cross has not yet formed any view about the identified issues. To assist the Deputy President, the Applicant must review this email and comply with the directions made to address the identified issues. The Applicant is also invited to make submissions or offer Undertakings (see Note C) in relation to any other issues.
3. Whether the Applicant gives an Undertaking is entirely a matter for them. Undertakings are invited, they are not mandatory.
4. If an Undertaking is given and it remedies the concern, then after receiving the responses to the Undertakings by the bargaining representatives, often the approval of the Agreement can be done “on the papers” (without the need for a formal hearing).
5. If an Undertaking is not given then, more likely than not, a formal hearing will need to be held if the Applicant's submissions about the identified issue are not satisfactory. If this is the case you must appear in person at the Commission at the date and time listed by Deputy President Cross (see Note E).
Directions
The Commission directs that:
1. By 4pm on 23 June 2021 the Applicant must file in the Commission and serve on all bargaining representatives any submissions and/or Undertakings it is prepared to provide in relation to the issues raised in this email from the Commission (Issues).
2. By 4pm on 28 June 2021 the any union or bargaining representative must file in the Commission and serve on the Applicant and all bargaining representative any submissions it is prepared to provide in relation to the issues raised by this email and the response of the Applicant.
3. The application for approval of the Proposed Agreement may be listed for a hearing at Sydney on the date and time set out in the Commission’s Notice of Listing.
Issues Raised:
Section 3: Terms of the Agreement | ||
Issue raised | Response requested | |
Definition of shiftworker: Clause 9.2.4 defines a shiftworker for the purposes of the NES as a continuous shiftworker. Electrical Award clause 21.1(b) defines a shiftworker for the purposes of the NES as a seven-day shiftworker regularly rostered to work on Sundays and public holidays | The Applicant is invited to provide an undertaking in relation to the apparent shiftworker issue. | |
Section 4: National Employment Standards (NES) | ||
Issue raised | Response requested | |
Personal leave – evidence: Clause 9.7.4 provides that backdated medical certificates will not be acceptable evidence of absence on personal leave. S.107 of the Act requires employees to provide evidence that would satisfy a reasonable person. | The Applicant is invited to provide an undertaking in relation to the apparent NES issue. | |
Public holidays: Clause 10.9.3 provides that an employee’s entitlement to absence on a public holiday is subject to the employer’s request to work. This may be narrower than the entitlement to absence provided by s.114 of the Act. | The Applicant is invited to provide an undertaking in relation to the apparent NES issue. | |
Termination – abandonment: Clause 12.4.4 provides that termination by abandonment is deemed to operate from the date of last attendance or the date of last absence for which company consent was given. S.117 of the Act provides that an employer may not terminate an employee’s employment without notice of the date of termination, which may not be a date before the notice is given. | The Applicant is invited to provide an undertaking in relation to the apparent NES issue. | |
Termination – notice: Clause 12.5.1 provides that the employer may summarily dismiss an employee for unreasonable refusal of duty or gross negligence. These circumstances appear broader than those provided by s.123 of the Act. | The Applicant is invited to provide an undertaking in relation to the apparent NES issue. | |
Redundancy: Clause 13.2 provides redundancy payments up to levels consistent with the Building Award industry-specific redundancy fund. This is less than the payments provided by s.119 of the Act after five completed years of service, applicable to employees who would otherwise be covered by the Electrical Award. | The Applicant is invited to provide an undertaking in relation to the apparent NES issue. | |
Better off overall test (BOOT) | |
Issue raised | Response requested |
Part-time overtime: Clause 4.2 does not appear to require that an employee be informed of ordinary hours consistent with Electrical Award clause 10.4. Clause 4.2.5 also allows for variation of part-time hours by agreement, which Electrical Award clause 10 does not appear to allow for. This may affect employee entitlements to overtime. Rates may not be high enough to compensate. | The Applicant is invited to provide an undertaking in relation to the apparent BOOT issue. |
Casual loading: Clause 4.3.3 provides cumulative casual loading on penalty rates where Electrical Award clause 20 provides compounding casual loading. Rates may not be high enough to compensate depending on the hours worked. See indicative modelling below. | The Applicant is invited to provide an undertaking in relation to the apparent BOOT issue. |
Shift loading – Building Award: Clause 7.11.2 does not provide a general metals and engineering early morning shift consistent with Building Award clause 17.1(a). Rates do not appear high enough to compensate employees for the omission. | The Applicant is invited to provide an undertaking in relation to the apparent BOOT issue. |
Shift definitions – Electrical Award: Shift definitions at clause 7.11 define shifts by commencement time, where Electrical Award clause 2.3 defines shifts by their finishing time. This may result in employees being entitled to a higher penalty rate under the Electrical Award when working a shift that would be a civil sector afternoon shift under the Agreement but a permanent night shift under the Electrical Award. Rates may not be high enough to compensate. | The Applicant is invited to provide an undertaking in relation to the apparent BOOT issue. |
(modelling omitted)
[3] On 7 July 2021, my Chambers emailed the Applicant in the following terms:
“Dear Parties,
I note that the Commission has not received any correspondence in relation to the above application for some time.
Please urgently respond to the below email, or otherwise advise the status of this application.
(original emphasis)
[4] On 8 July 2021, the Applicant emailed my Chambers requesting an extension of time within which to file their responses to the Initial Issues. I granted the requested extension of time, and the Applicant was given until 4:00pm on 12 July 2021 to submit any documents or submissions it wishes to make.
[5] After advising my Chambers on 13 July 2021 that the submissions had not been filed due to a power outage in the area, the Applicant emailed my Chambers in the following terms:
“We have reviewed the issues below and we acknowledge and make undertaking to the changes listed below including the modelling table.
Please see detailed responses below.
Thank you.”
[6] The Applicant’s “detailed responses” comprised of a text comment which stated “we undertake and accept changes herein,” in the Response requested column of the above Initial Issues email (the First Response).
[7] On 16 July 2021, my Chambers emailed the Applicant and Bargaining Representative in the following terms:
“Dear Parties,
I note that, should the Agreement application proceed to approval, the Undertakings provided by the Applicant are to be in the standard form for inclusion in any Decision of the Commission.
For expediency, the Applicant is invited to provide a compliant document outlining the Undertakings it has resolved to make in relation to the Agreement.
For information on making compliant Undertakings and agreement requirements generally, please see the Fair Work Commission website resources, particularly: Undertakings in enterprise agreements | FWC Main Site.”
[8] Having not received a response to the above email, on 27 July 2021, my Chambers emailed the Applicant and Bargaining Representative in the following terms:
“Dear Parties,
Chambers is yet to receive any submission from the bargaining representatives, and further, has not received a compliant Undertaking as requested below.
The Applicant is requested to provide any Undertakings it is willing to make in compliant form by 4:00pm 29 July 2021.”
[9] On 27 July 2021 the Applicant emailed in reply to the above email, in the following terms (the Second Response):
“We have made undertaking in my email dated 13/07/2021, if this not what was requested could you kindly call me on [telephone number omitted] to get clarifications of what’s required.”
[10] On 29 July 2021, my Chambers emailed the Applicant and the Bargaining Representative in the following terms:
“Dear Mr Akkawi,
Please review this link: Undertakings in enterprise agreements | FWC Main Site.
On this page, there are a series of examples of undertakings, and the form they should take when providing same to the Commission.
You need to submit to Chambers a single document with all of the undertakings you wish to make, and to have this document set out as is demonstrated in the examples.
This document, if your agreement is approved, is attached to the end of the agreement when published so the document needs to be in the correct form. There will be examples of undertakings that have been previously approved by the Commission on our website.
What we have previously received from you is a comment in the text of an email within a table that indicated you are prepared to make an undertaking in relation to the issues raised. This is not a compliant undertaking, and the agreement cannot be approved without the correct document.
Please provide same to Chambers by 4:00pm 30 July 2021, and do not hesitate to contact us via email if you have further queries.”
[11] On 30 July 2021, the Applicant wrote to Chambers requesting an extension of time within which to submit the undertaking, and I granted the Applicant the requested extension, requiring submission by 4:00pm on 6 August 2021.
[12] On 3 August 2021, the Applicant emailed the following document to Chambers (the Third Response):
[13] It is noted that the above document is an identical replication of the original “detailed responses” provided previously to Chambers, with the addition of the Applicant’s letterhead and the required introductory authorisation paragraph.
Consideration
[14] The Commission goes to significant lengths to assist parties in complying with the requirements of the Act regarding the approval of enterprise agreements. That assistance is provided:
(a) Generally, by way of detailed research materials contained in the Commission’s main web site, to which the Applicant was referred on 18 June, 16 and 29 July 2021; and
(b) Specifically, by way of prompt and detailed identification of the Initial Issues, as occurred on 18 June 2021.
[15] The Commission may approve an enterprise agreement that may not meet certain requirements of the Act if satisfied that a written undertaking meets the concern. In the approval of an agreement, any accepted undertaking(s) is both noted in the decision and is attached to the copy of the agreement published on the Commission’s website.
[16] The effect of undertakings is outlined in s.191 of the Act as follows:
Effect of undertakings
(1) If:
(a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and
(b) the agreement covers a single employer;
the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.
(2) If:
(a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and
(b) the agreement covers 2 or more employers;
the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.
[17] An undertaking is a commitment that the employer will comply with what is written in the undertaking in addition to or instead of a term of the agreement, and is legally binding on the employer. 1
[18] Neither the First Response, the Second Response nor the Third Response is expressed in a way that can be described as imposing any legally binding obligations on the Applicant, and the Third Response is remarkable for its failure to address in any meaningful way the Initial Issues. The simple statement “We undertake and accept changes herein” provides no meaningful binding obligation, particularly in relation to BOOT issues where some analysis is required of the effect of terms of the Proposed Agreement and the undertakings required to remedy those effects.
[19] It is abundantly clear that, notwithstanding the Commission repeatedly directing the Applicant’s attention to the means by which the Initial Issues may be addressed, the Applicant has directed little attention or effort to resolving those issues. I consider, in the circumstances, that any further attempts by the Commission will be met with similar despondency.
Conclusion
[20] On 18 June 2021, the Commission identified a number of apparent issues with the Proposed Agreement that warranted submissions or other responses, including undertakings, from the Applicant prior to consideration of the approval of the Proposed Agreement. Despite numerous opportunities, the Applicant has failed to make any meaningful submissions, or provide undertakings in an intelligible form that could be legally binding on the Applicant notwithstanding that the Applicant appeared to accept the force of the Initial Issues identified.
[21] In the circumstances, I am not satisfied that the Agreement would result in the employees covered by the Agreement being better off overall. I find that certain provisions of the Proposed Agreement provide conditions that are less than those provided in the NES.
[22] The Application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732740>
1 S.191(2) of the Act.
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