Rockleigh (Vic) Pty Ltd T/A Workforce Extensions Castlemaine
[2010] FWA 6570
•25 AUGUST 2010
[2010] FWA 6570 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Rockleigh (Vic) Pty Ltd T/A Workforce Extensions Castlemaine
(AG2010/884)
COMMISSIONER LEWIN | MELBOURNE, 25 AUGUST 2010 |
Workforce Extensions Castlemaine Security Employees Enterprise Agreement 2009.
[1] This decision concerns an application made by Rockleigh (Vic) Pty Ltd T/A Workforce Extensions Castlemaine (Rockleigh), for approval of the Workforce Extensions Castlemaine Security Employees Enterprise Agreement 2009 (the agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The application lodged in Fair Work Australia on 15 April 2010.
[2] The reference instrument for the purposes of comparison in determining whether or not the Agreement passes the better off overall test is the Security Services Industry Award 2010 (MA000016). On reading the terms of the terms of the Agreement and the reference instrument I became concerned that the Agreement did not pass the better off overall test and requested that research be conducted on the Agreement by the FWA Agreements Team.
[3] On 18 May 2010 the application was listed for Hearing on 19 May 2010. Ms Simonne Kaplan, a solicitor, appeared on behalf of Rockleigh. The employees were not represented. During the Hearing I explained to Ms Kaplan the deficits in the Agreement that gave rise to my concern that the Agreement did not pass the better off overall test. Rockleigh was invited to file material in Fair Work Australia in response to my concerns by the close of business on 26 May 2010.
[4] On 26 May 2010 Ms Kaplan filed Submissions prepared by Mr Dan Feldman, a solicitor, in the Tribunal. In those submissions Rockleigh proposed undertakings for the consideration of the Tribunal in the following terms:
“UNDERTAKINGS
1. Clause 6.5
Rockleigh (Vic) Pty Ltd t/a Workforce Extensions Castelmaine (the Company) undertakes that it will only require employees to work at sites other than their regular place of employment on an ad hoc basis, by mutual agreement. In the event employees are required to work at a site other than their regular site, they will be paid their usually hourly rate for travel time in addition to the vehicle allowance in Part 3 of Schedule A.
2. Clause 9.4
The company undertakes that in the event that employees are required by the company to work additional hours, they will be paid at the rates listed in clause 9.4 of the Agreement, irrespective of whether or not the hours were approved in advance and in writing.
3. Clause 9.5
The Company undertakes that employees will only be offered additional hours in accordance with the following table:
Period | Maximum number of hours |
Monday - Friday 6.00 am - 6.00 pm | 3 |
Monday - Friday 6.00 pm - 6.00 am | 3 |
Saturday | 5 |
Sunday | 12 |
4. Clause 10.1
The Company undertakes to provide 7 days notice of any changes to the roster, if shorter notice is provided the change will occur by mutual consent.
5. Clause 16
The Company undertakes that any Shiftworker will receive 5 weeks annual leave in accordance with the National Employment Standards.
6. Clause 22
The Company undertakes that employees will be paid a crib break, namely they will be entitled to a 10 minute paid break for each four hours worked on a shift.”
[5] Upon receipt of the undertaking I requested that further research be conducted on the Agreement by the Fair Work Australia Agreements Team taking into account the undertakings made by Lighthouse Protection Group.
[6] On 18 June 2010 I wrote to Mr Feldman, with the subsequent research document attached, stating that on what was before me, including the proposed undertakings, at that time I was not satisfied that the Agreement passed the better off overall test. I also informed Rockeligh that I was concerned that, taking into account the transitional provisions which apply to modern awards, employees would not be better off overall over the life of the Agreement. I informed Mr Feldman that an additional document was being prepared by the Fair Work Australia Agreements Team in this regard and that I would forward a copy of that document to him once it was prepared. The subsequent research document was forwarded to Mr Feldman on 29 June 2010. Mr Feldman was invited to respond to my correspondence of 18 June 2010 and 29 June 2010 by 13 July 2010.
[7] Prior to the 13 July 2010, Ms Kaplan sought an extension to file materials in response to my correspondence until 15 July 2010. On 15 July 2010 Ms Kaplan filed a response prepared by Mr Feldman. Included in those submissions were revised undertakings in the following terms:
“UNDERTAKINGS
1. Clause 6.5
Rockleigh (Vic) Pty Ltd t/a Workforce Extensions Castelmaine (the Company) undertakes that it will only require employees to work at sites other than their regular place of employment on an ad hoc basis, by mutual agreement. In the event employees are required to work at a site other than their regular site, they will be paid their usually hourly rate for travel time in addition to the vehicle allowance in Part 3 of Schedule A.
2. Clause 9.4
The company undertakes that in the event that employees are required by the company to work additional hours, they will be paid at the rates listed in clause 9.4 of the Agreement, irrespective of whether or not the hours were approved in advance and in writing.
4. Clause 10.1
The Company undertakes to provide 7 days notice of any changes to the roster, if shorter notice is provided the change will occur by mutual consent.
5. Clause 16
The Company undertakes that any Shiftworker will receive 5 weeks annual leave in accordance with the National Employment Standards.
6. Clause 22
The Company undertakes that employees will be paid a crib break, namely they will be entitled to a 10 minute paid break for each four hours worked on a shift.
The Company undertakes to pay all meal breaks.
6. Clause 28
The Company undertakes that if more than two thirs of an employees’ ordinary shifts over an 8 week cycle occur between midnight and 6.00 am, the employee will receive a 30% loading for the shifts occurring Monday to Friday.
7. Clause 28
From 1 July 2014, the Company undertakes to increase the:
• Casual 6pm - 6am loading to 55%;
• Casual Saturday loading to 75%;
• Casual Sunday Loading to 125%;
• Casual Public Holiday loading to 175%; and
• Permanent 6 pm - 6 am night loading to 30%.”
[8] Fair Work Australia may approve an enterprise agreement with undertakings pursuant to s.190 of the Act which is set out below:
“190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
[9] I have considered the undertakings filed by the Rockleigh. In my judgment, there are a number of reasons why the undertakings offered cannot or should not be accepted. They are as follows:
- The undertakings would lead to substantial changes in the terms of the Agreement. Accordingly, pursuant to the provisions of s.190(3)(b) of the Act, the Tribunal does not have the discretionary power to accept the undertakings and approve the Agreement accordingly.
- The undertakings offered would not, in any event, effectively address all of the disadvantages arising from a comparison between the terms of the Agreement and the terms of the reference instrument.
- The terms of the undertakings are inherently complex, require significant interpretation, are ambiguous and, arguably at least, are so comprehensive as to constitute entirely new and different terms and conditions of employment to those which were subject of the Agreement making process with the employees.
[10] I conclude that the Tribunal does not have the discretionary power to accept the undertakings because it is likely that the undertakings will lead to substantial changes in the terms of the Agreement. In the alternative, if the discretionary power to accept the undertakings exists, then I decline to do so for the reasons stated above.
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