Pacific Brands Holding Pty Ltd T/A Tontine

[2014] FWC 9047

[2014] FWC 9047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Pacific Brands Holding Pty Ltd T/A Tontine
(AG2014/8294)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 15 DECEMBER 2014

Application for approval of the Tontine Group and National Union of Workers Enterprise Agreement 2014-2017.

[1] An application has been made for approval of an enterprise agreement known as the Tontine Group and National Union of Workers Enterprise Agreement 2014-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Pacific Brands Holding Pty Ltd T/A Tontine. The agreement is a single-enterprise agreement.

[2] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(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.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements 2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement (1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement. (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.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[4] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the Act as it did not include the name of each of the employer and employee representatives who signed the agreement as required by Regulation 2.06A.

[5] As the requirements of s.185(2)(b) have not been complied with the application is not a valid application. The application is therefore dismissed.

Observations

[6] Clause 8.1 of the Agreement makes reference to a relationship with a modern award. The clause is as follows:

“8.1 Relationship to parent award

This agreement shall be read and interpreted in conjunction with Manufacturing and Associated Industries and Occupations Award 2010 provided that where there is any inconsistency between this agreement and the Award, this agreement shall take precedence to the extent of the inconsistency.”

[7] On its face clause 8.1 cannot give rise to any inconsistency between the Agreement and the Award as the clause does not incorporate the Award into the Agreement and the Award is wholly displaced by the operation of the Agreement, if approved. If it was intended that the Award be incorporated into the Agreement then clause 8.1 would need to specifically provide for this.

[8] Clause 13 provides a consultation mechanism but does not meet the requirements of s.205 of the Act. Any new Agreement will need to contain a consultation term which meets the requirements of s.205 of the Act.

[9] Clause 15 is a Flexibility Term but one which does not meet the requirements of s.203 of the Act. In particular clause 15.4.1 is contrary to the requirements of s.203(6)(a) of the Act. Any new Agreement will need to contain a flexibility term which meets the requirements of s.203.

[10] Particularly clause 15.4.1 provides that termination of an individual flexibility arrangement can be effected by either party giving no more than one month’s notice to the other. Section 203(6)(a) specifically provides that the notice period is not more than 28 days. A month is longer than 28 days in all months except February’s in Leap Years.

[11] Clause 19 requires that employees comply with company policies and procedures. The clause is as follows:

“19. EMPLOYEE DUTIES

All employees of the business are expected to be available, ready and willing to perform his/her work during the days and hours usually worked by such class of employee, to comply with all company policies and procedures in relation to their employment, to otherwise observe their obligations as employees as prescribed in relevant legislation, Awards and this Agreement and to participate in training and other workplace improvement activities as required.”

[12] The consequence of the operation of clause 19 is that if an employee engages in any non compliance with a company policy or procedure, no matter how minor the non compliance may be, the employee will have breached a term of an enterprise agreement and will therefore have breached s.50 of the Act. A breach of s.50 is a civil remedy provision. A simple addition to clause 19 would remedy this situation. The addition could be: Non compliance with any policy or procedure does not constitute a breach of the term of this Agreement and any non compliance with a policy or procedure by an employee will be dealt with in accordance with the usual disciplinary processes.

[13] Clause 21.2 provides for part-time employment in terms which lack the protections and benefits provided for by clause 13 of the Manufacturing and Associated Industries and Occupations Award (the Award). Therefore part-time employment under the Agreement will be significantly inferior to part-time employment under the Award. The Form F17 identifies that no part-time employees are currently employed. The issue could be addressed by amending clause 21.2 so that it reflects clause 13 of the Award.

[14] Clause 21.5 provides for a period of probation for employees. The issue with this provision concerns the way in which the first week of employment is treated. Clause 21.5.2 provides as follows:

“21.5.2 During the first week, engagement by the employer shall be by the hour and employment during this period shall be terminated by an hour's notice on either side or by the payment or forfeiture of one hour's wages as the case may be.”

[15] Where an employee has been engaged as a part-time or full time employee then the employee cannot be dismissed on one hour’s notice. Section 117(3) provides that the minimum period of notice must be one week.

[16] Clauses 22 and 38.6.3 deal with the requirements of an employee to notify the employer of absences from work. The clauses are as follows:

“22. NOTIFICATION OF ABSENCE

22.1 An employee who is to be absent from work without prior arrangement is to make every reasonable attempt to notify the company of their absence, the reason for it and the expected duration of the absence within one hour of their scheduled commencement time on the day of absence.

22.2 If an employee is absent and has not notified the company in accordance with the above, the company may endeavour to contact the employee concerned to ascertain the reason for and expected duration of the absence.

22.3 The company acknowledges that there may be situations in which an employee is genuinely and reasonably unable to contact the company within the timeframe specified in clause 22.1 and agrees to exercise reasonable discretion in this regard, provided that the employee can demonstrate that they contacted the company as soon as they were reasonably able to, having regard to their circumstances at the time.

38.6.3 Prior notice of absence

The employee will, wherever practicable, give the employer notice prior to the absence of the intention to take leave, the name of the person requiring care and their relationship to the employee, the reasons for taking such leave and the estimated length of absence. If it is not practicable for the employee to give prior notice of absence, the employee will notify the employer by telephone of such absence at the first opportunity on the day of absence.

[17] The clauses cannot operate and are not permitted in an enterprise agreement to the extent that they purport to set notice requirements for an employee entitled to personal/carer’s leave or compassionate leave.

[18] Section 107 of the Act provides that:

“107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[19] The obligations on an employee to give notice to their employer in relation to personal/carer’s leave or compassionate leave are exhaustively set out in s.107(1).

[20] As is very clear from s.107(5) an enterprise agreement “may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave”. However, s.107(5) does not permit an enterprise agreement to alter the notice requirements set by s.107(1).

[21] Clause 23 of the Agreement deals with abandonment of employment but does so in a way which is linked to the operation of clause 22. Given that clause 22 has real difficulties then so will clause 23.

[22] Clause 24.4.2 provides an entitlement for the employer to withhold monies from the final pay of the employee where it is alleged that the employee has failed to give the requisite notice of termination. I have discussed this matter in depth in Hydro Chem Pty Ltd, [2014] FWCA 5163.

[23] Clause 38.7 is as follows:

“38.7 Compassionate leave

38.7.1 Paid leave entitlement

An employee is entitled to use up to 15.2 hours personal/carers leave as Compassionate leave on any occasion on which a member of the employee's immediate family, as defined in clause 38.6.5, or household in Australia dies.”

[24] The obvious deficiency with clause 38.7 is that it removes all of the entitlement provided by s.105(1)(a) and half of the entitlement provided by s.105(1)(b).

[25] Section 105 (1) is as follows:

“105 Taking compassionate leave (1) An employee may take compassionate leave for a particular permissible occasion if the leave is taken:

(a) to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury, referred to in section 104; or

(b) after the death of the member of the employee’s immediate family or household referred to in section 104.

[26] Finally, I observe that there are cross referencing errors in clause 26.3.2 and 26.4.

COMMISSIONER

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