PPG Industries Australia Pty Limited

[2015] FWCA 5591

[2015] FWCA 5591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PPG Industries Australia Pty Limited
(AG2015/3392)

PPG CLAYTON SITE ENGINEERING AGREEMENT 2015 - 2018

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 3 SEPTEMBER 2015

Application for approval of the PPG Clayton Site Engineering Agreement 2015-2018.

[1] An application has been made for approval of an enterprise agreement known as the PPG Clayton Site Engineering Agreement 2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by PPG Industries Australia Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] The matter was listed for substantive hearing before me on 24 August 2015. Mr D Vroland appeared for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Mr D Carden appeared for the Applicant. At the conclusion of the proceedings I issued a decision ex tempore. What follows is an edited version of that decision.

[3] I have had concerns about some aspects of the Agreement.  The Applicant has proffered possible undertakings to deal with those concerns.  They were provided by way of an email, dated 6 August 2015, and there were two proposed undertakings, one in respect of clause 15 of Part F of the Agreement and one in respect of clause 7 of Part F of the Agreement.

[4] The undertakings were not signed at the time of the proceedings. The views of the AMWU were sought at the hearing. The AMWU advised that they did not have difficulty with the undertakings offered. I advised that the Applicant was to provide my chambers with signed undertakings by no later than close of business 25 August 2015.

[5] The remaining issues that were ventilated relate to the flexibility term and the consultation term.  In terms of the consultation term, I had some concerns that it did not meet the requirements of section 205 of the Act in a number of respects.  In particular I had concerns that the clause did not meet s.205(1)(a)(ii) of the Act to the extent that it dealt with a change of regular roster or ordinary hours of work and also that it did not meet the requirements of s.205(1A) of the Act and also the requirements of s.205(b) of the Act.

[6] Having considered the submissions of Mr Vroland for the AMWU, I agree that the clause does meet the requirements of s.205(1)(a)(ii) of the Act.  I think the clause does contemplate a change to the ordinary hours of work.  It doesn't specifically say regular roster, but clearly contemplates a change in that respect.

[7] However, I'm not satisfied that the clause contains the terms that it must contain, as per s.205(1A) of the Act in respect of s.205(1A)(b), and (c).  I am satisfied it meets the requirements of s. 205(1A)(a), but the clause does not invite employees to give their views about the impact of the change, including any impact in relation to their family or caring responsibilities.  It doesn't mention those words at all, nor to consider any views given by the employees about the impact of the change.

[8] In order to infer that those rights are there, I would be required to give the clause a broad reading (as I was invited to do by Mr Vroland) but I don't think that the clause does deal with the requirements of s.205(1A)(b) and (c) sufficiently.  Moreover, s.205(1)(b) of the Act provides that the clause must allow for the representation of those employees for the purposes of that consultation.  The clause in this Agreement does allow for representation, but only by the union.  That gives rise to question as to how employees who are not members of the union will be represented.

[9] The essence of Mr Vroland's position for the AMWU is that I should, as a matter of statutory construction, read the word, "allows” as meaning that, provided that the clause does not prevent, prohibit or restrain representation, that this is sufficient to find compliance with s.205(1)(b). Mr Vroland drew my attention to Anglican Care v NSW Nurses and Midwives Association 1 in support of this argument. I don't agree with that proposition. If it were correct there would be no apparent reason for including s.205(1)(b). It would have no work to do.

[10] To the extent that s.205(1)(b) does not allow for the representation of employees, other than by the union, I'm not satisfied that the section is complied with. Pursuant to s.205(2) of the Act, as I have a view the enterprise agreement does not include a consultation term, the model consultation term is taken as a term of the agreement.

[11] The other issue was the requirements to be met by a flexibility term.  The flexibility term must meet the various requirements of the Act.  Sub section 203(4) provides that the flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to, under the term, must result in the employee being better off overall than the employee would have been if no individual flexibility agreement were agreed to. Under the relevant provision of the Agreement, the flexibility term provides that an individual flexibility arrangement must result in the employee being better off overall “or at least equal to the EBA”.

[12] In my view, that clearly does not meet the requirement of s.203(4) of the Act and that it clearly contemplates that an employee could be equal to rather than better off overall. 

[13] Section 190 of the Act does not permit me to accept undertakings to correct the deficiencies in the consultation and flexibility terms as they are not concerns about matters in s.186 and s.187 of the Act.

[14] I have therefore determined pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

[15] Subsequent to the hearing, the Applicant provided signed 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.

[16] 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.

[17] The AMWU 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.

[18] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 September 2015. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Annexure A:

 1 [2015] FCAFC 81

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