Rebel Tenpin Pty Ltd T/A Holiday Lanes & Storm Bowling Aust.
[2010] FWA 562
•29 JANUARY 2010
[2010] FWA 562 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2010/3789)
Amusement, events and recreation industry | |
COMMISSIONER CAMBRIDGE | SYDNEY, 29 JANUARY 2010 |
Application for approval of the Rebel Tenpin Pty Ltd Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Rebel Tenpin Pty Ltd Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Rebel Tenpin Pty Ltd T/A Holiday Lanes & Storm Bowling Aust. (the Employer). The Agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] The application was lodged at Sydney on 5 January 2010. The application included a Statutory Declaration of James McGinty, made on behalf of the Employer and dated 28 December 2009, (the Declaration). The Declaration stated that the Agreement was made on 17 December 2009. Consequently the application was not made within the 14 day lodgement time limit established by s. 185 (3) of the Act. It should be noted that s. 185 (3) (b) of the Act provides for circumstances to allow extension of the lodgement time limit.
[4] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[5] As can be seen from s. 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.
[6] In this instance, the Declaration stated that the date on which the last notice of representational rights was provided was 19 November 2009. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 10 December 2009.
[7] Consequently the Agreement does not comply with the requirements of s.181 (2) of the Act.
[8] One further procedural requirement established by Part 2-4 of the Act arises under S.173 of the Act which states as follows:
173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given. [emphasis added]
[9] Regulation 2.04 of the Fair Work Regulations 2009 (the Regulations) states as follows:
2.04 Notice of employee representational rights — how notice is given
(1) For subsection 173 (5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.
(2) The employer may give the notice to the employee personally.
(3) The employer may send the notice by pre-paid post to:
(a) the employee’s residential address; or
(b) a postal address nominated by the employee.
(4) The employer may send the notice to:
(a) the employee’s email address at work; or
(b) another email address nominated by the employee.
(5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet.
(6) The employer may fax the notice to:
(a) the employee’s fax number at work; or
(b) the employee’s fax number at home; or
(c) another fax number nominated by the employee.
(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.
(8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee. [emphasis added]
[10] It would therefore appear that the Act and the Regulations contemplate that each employee is to be given a notice of representational rights. Notwithstanding that sub-section (7) of Regulation 2.04 provides for display of the notice in a conspicuous location, it also refers to the employee as opposed to employees generally.
[11] The use of the particular words “each employee” in s.173 (1) establishes, in my view, a requirement on an employer that would not be discharged by simply placing a general notice on a notice board or on various notice boards. I acknowledge that Cargill C in her Decision of 9 October 2009 (United Group Rail Services Limited [2009] FWA 452), determined that placing a copy of a notice on six noticeboards satisfied both sub-section (7) of Regulation 2.04 and s. 173 (1) of the Act.
[12] However, with respect, in my view the provisions of both s.173 (1) and Regulation 2.04 require some degree of personalisation of the notice of representational rights. If this where not the case, then there would be no purpose served or work done by the words “each employee” in s.173 (1) of the Act.
[13] Consequently, in this instance, it would seem that s.173 (1) of the Act would not be satisfied given that paragraph 2.3 of the Declaration states “… a Notice of Employee Representational Rights was posted on all notice boards…”
[14] Further, I note that in United Group Rail Services Limited [2009] FWA 452, the particular circumstances of that case where said to be relevant to the operation of s.173 (1). Conceivably then the particular circumstances in this instance might require examination and if this issue was the only matter of concern with the application I would ordinarily entertain some Hearing or other means to address the question.
[15] It would be conceivable that the failure of the application to meet the procedural requirements of the Act could have arisen from mistake or some inadvertent error. However it would be potentially problematic to contemplate allowing for correction or amendment, perhaps under section 586 of the Act, given that; (a) the relevant material has been provided in the form of a Statutory Declaration, and (b) the procedural requirements are contained in the Act, and not some subordinate instrument.
[16] Any proper process to possibly permit correction or amendment would likely require a Hearing involving careful examination and testing of evidence from the deponent of the Statutory Declaration as a witness in the proceedings. In a practical sense, particularly as some of the terms of the Agreement appear to operate so as to cause the Agreement to fail the no disadvantage test, it would be potentially more costly and inconvenient to the applicant employer to allow the application to proceed at all.
[17] For the benefit of the Parties to the Agreement, the terms of the Agreement that appear to offend the no disadvantage test include:
1. The absence of a clause to provide for Sunday and public holiday rates.
2. The absence of a clause to provide for higher duties payment.
3. Clause 4.2 providing for termination of an employee on 1 day’s notice during the probation period.
4. Clause 11.5 providing a meal allowance of $7.45 instead of $8.45.
5. Clause 20 .1 where the rates per kilometre are 52, 62 and 63 instead of 62, 71 and 72 respectively.
6. Clause 23.1 providing for a “…al [sic] purpose rate of $45.60 per week…” instead of $48.10.
7. Clause 30.4 which provides for termination of employment without notice and without payment in lieu of notice if, inter alia, the employee is unable to meet the inherent requirements of the position.
[18] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application is dismissed.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
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