RFS Australia Pty Limited

[2017] FWCA 6808

[2017] FWCA 6808

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

RFS Australia Pty Limited

(AG2017/1933)

RFS professional employees enterprise agreement 2017

Manufacturing and associated industries
Commissioner Gregory	MELBOURNE, 18 DECEMBER 2017

Application for approval of the RFS Professional Employees Enterprise Agreement 2017.

1. An application has been made for approval of an enterprise agreement known as the RFS Professional Employees Enterprise Agreement 2017 (“the Agreement”). It is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by RFS Australia Pty Limited (“RFS Australia”). The Agreement is a single enterprise agreement and is intended to cover around 60 employees employed by RFS Australia in its business of designing and manufacturing cable and antenna systems.

1. After reviewing the application and the F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought further clarification from RFS Australia about a range of matters. These involved, firstly, the wage rate arrangements.

1. The Agreement does not contain details of the wage rates provided to employees. However, clause 13 indicates that all employees will be paid an annual salary which will be more than what the employee would have received under the relevant underlying Award if “he/she was paid all individual monetary entitlements under such Award.” The relevant Awards are the Clerks Private Sector Award 2010, the Commercial Sales Award 2010, and the Professional Employees Award 2010.

1. The Commission accordingly requested details of the wage rate arrangements to enable the “better off overall” test assessment to be carried out. A detailed spreadsheet was subsequently provided by RFS Australia detailing the annual salaries provided to each individual employee. This document was provided to the Commission on a confidential basis and will be retained on the Commission’s file on that basis. The table of rates contained in the spreadsheet indicates that the annual salaries paid to individual employees are all well in excess of the underlying rates contained in the relevant Awards. It is also noted that Clause 13 provides for these rates to be adjusted in accordance with the annual CPI movements during the life of the Agreement.

1. However, the Commission was also concerned about the circumstances involving any new employees who might be employed by the business at some time in the future. RFS Australia has provided an undertaking in response that sets out the minimum rates that would be paid to any such employees.

1. The Agreement also contains a number of additional entitlements and benefits over and above those contained in the underlying Awards. For example, it provides for an annual long service leave accrual, which is greater than that provided for under the relevant State legislation. This can be accessed after a minimum period of service of 7 years. It provides for more generous severance pay entitlements. It provides for a pay out of unused accrued personal leave entitlements in some circumstances. It also provides each employee with an additional five “flexi days” each year to assist their “work life balance.” There is no requirement to accrue additional time in order to gain this extra leave entitlement. An additional day off is also provided on the day prior to the Melbourne Cup public holiday.

1. However, the Commission also sought clarification about some additional matters. RFS Australia has, in response, provided some further undertakings. I am satisfied that these undertakings will not cause financial detriment to any employee covered by the Agreement, and will not result in substantial changes to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement in accordance with s.191 of the Act. They are contained in the attached correspondence dated 24 August 2017.

1. It is also noted that the Consultation term contained in clause 32 of the Agreement does not specifically provide for consultation in relation to changes to the regular roster or ordinary hours of work, as required by s.205 of the Act. The model term is accordingly taken to be a term of the Agreement. In addition, the Flexibility term in clause 31 of the Agreement does not comply with the model term in that it does not specifically require any Individual Flexibility Agreement to be about matters that would be permitted matters if the arrangement were an enterprise Agreement. Further, it does not state that an Individual Flexibility Agreement cannot include a term that would be an unlawful term if the arrangement were an enterprise agreement. The model term is accordingly taken to be a term of the Agreement in accordance with s.202(4) of the Act.

1. Subject to the undertakings referred to above I am otherwise satisfied that each of the requirements of ss.186, 187 and 190 of the Act, as are relevant to this application for approval, have been met. It is also noted that each of the three Employee Bargaining Representatives has provided a Form F18A Statutory Declaration confirming their agreement to the matters contained in the Employer’s Form F17 Statutory Declaration.

1. The Agreement is approved and in accordance with s.54 of the Act will operate from 25 December 2017. The nominal expiry date of the Agreement is 31 March 2020.

COMMISSIONER

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