Outlook Australia Inc T/A Outlook (Aust) Ltd
[2024] FWCA 566
•12 FEBRUARY 2024
| [2024] FWCA 566 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Outlook Australia Inc T/A Outlook (Aust) Ltd
(AG2023/5063)
OUTLOOK RECYCLING AND SHOP ENTERPRISE BARGAINING AGREEMENT 2023.
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 12 FEBRUARY 2024 |
Application for approval of the Outlook Recycling and Shop Victorian Enterprise Bargaining Agreement 2023
An application has been made for approval of an enterprise agreement known as the Outlook Recycling and Shop Victorian Enterprise Bargaining Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Outlook Australia Inc T/A Outlook (Aust) Ltd. The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.
The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, lodged a form F18 advising that it does not support approval of the Agreement on the ground that it has not been genuinely agreed to by all the employees covered by it. The objection is that the Applicant has not complied with s173(1)(a) as not all employees were issued with a Notice of Employee Representational Rights (NERR) and not all employees had the opportunity to bargain for the agreement, and that these are not minor procedural or technical errors.
When bargaining for the Agreement commenced in February 2023, the NERR was provided to employees at the Mornington, Hampton Park and Melton sites of the Applicant. The NERR stated that the Applicant was bargaining for an agreement which is proposed to cover “employees that are employed in Victoria employed by the Outlook Recycling, Shop and Nursery Enterprise Bargaining Agreement 2017” (the 2017 Agreement). The 2017 Agreement covers all employees working in the classifications set out in the Agreement and is not confined to any particular sites operated by the Applicant. The coverage of the Agreement is similarly not confined to any particular sites. However, when the Agreement was put to employees to vote on, employees at two additional sites (Bayswater and Ravenhall) were asked to cast a vote. Employees at these two sites were not issued a NERR. The explanation for this is that at the notification time, there were no employees at these sites as they were not operational until 1 November 2023.
The AWU only became aware of the Applicant’s intention to cover employees at the two new sites in late October 2023. Negotiations between the AWU and the Applicant concluded around mid-October. During negotiations, the log of claims presented by the AWU did not include a claim restricting the scope of the proposed agreement, and the Applicant did not state that it was negotiating a new agreement only for the 3 existing sites. Whilst I accept that during bargaining the AWU sought to amend the Agreement to list the 3 sites, there is no evidence that the Applicant ever agreed to do so.
The obligation on the Applicant under s 173(1) is to take all reasonable steps to give the NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement. It is not disputed that the notification time for the Agreement was 21 February 2023, nor is it suggested that there were any employees at Bayswater or Ravenhall at that date. There is no obligation on an employer to continue to issue NERRs if new employees who will be covered by a proposed agreement commence employment after the notification date. The situation here is no different, in principle, than if new employees had commenced employment at the Mornington, Hampton Park or Melton sites after the notification time.
The AWU contends that the Agreement was not a ‘proposed agreement’ for the purposes of s173(1)(a) of the Act as ‘it did not reflect an agreement that the Applicant intended to negotiate. Negotiations for the Agreement had concluded, and there were no further bargaining meetings planned.” As I understand it, the AWU contends that the employees at the two new sites had no opportunity to bargain because the negotiations had concluded before they commenced employment. However, the Act does not require bargaining parties to continue or re-open negotiations every time a new employee who will be covered by a proposed agreement commences employment. The practical difficulties that would arise if such an obligation did exist would potentially be immense; negotiations could be required to continue almost indefinitely if new employees continued to be engaged.
The AWU referred to the decision in Wesfarmers Premier Coal Ltd v The AFMEPKIU,[1] however I do not consider the decision relevant. It was made under different statutory provisions and considered the meaning of ‘proposed agreement’ in provisions of the then Act dealing with the initiation of a bargaining period and the taking of protected industrial action. The obligation under s 173(1)(a) is for an employer who will be covered by a proposed enterprise agreement to take all reasonable steps to issue the NERR as referred to above. That obligation was triggered and discharged in February 2023 at the commencement of bargaining.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Australian Workers’ Union, 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 the organisation.
I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 13.5(a) – Alternative Employment; and
· Clause 26 – Compassionate Leave.
However, noting the undertaking provided by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 February 2024. The nominal expiry date of the Agreement is 1 January 2026.
DEPUTY PRESIDENT
Annexure A
IN THE FAIR WORK COMMISSION
FWC Matter No.: AG2023/5063
Application for approval of the Outlook Recycling and Shop Victorian Enterprise Bargaining Agreement 2023
Applicant:
Outlook (Aust) Limited
Section 185 – Application for approval of a single enterprise agreement
Undertaking – Section 190
I, Daniel Findlay, Chief Executive Officer of Outlook (Aust) Limited have the authority given to me by Outlook Australia Inc to give the following undertakings with respect to the Outlook Recycling and Shop Victorian Enterprise Bargaining Agreement 2023 ("the Agreement"):
This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
Casuals who work on a public holiday will be paid 250% of the ordinary rate of their classification plus the 25% casual loading
Employees who work overtime on a Saturday will be paid at 150% of the ordinary rate for the first 2 hours of work and 200% thereafter.
TOIL shall be provided in accordance with clause 20.6 of the Supported Employment Services Award 2020.
The wage rate for Customer Service Level 6 will always be at least 1% above the award wage rate.
Customer Service Level 7 in Scheule A – Classifications will not be used by Outlook during the life of the Agreement.
These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.
____________________________
Signature
____22/12/23_________________
Date
[1] Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2004) 138 IR 362.
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