Royal Australian College of General Practitioners
[2010] FWA 7881
•11 OCTOBER 2010
[2010] FWA 7881 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
Royal Australian College of General Practitioners
(AG2010/17727)
Educational services | |
COMMISSIONER ROE | MELBOURNE, 11 OCTOBER 2010 |
Application for approval of the RACGP Enterprise Bargaining Agreement 2010 - Refusal of Agreement.
[1] An application has been made for approval of an enterprise agreement known as theRACGP Enterprise Bargaining Agreement 2010 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Royal Australian College of General Practitioners (the Applicant). The agreement is a single-enterprise agreement.
[2] I had a number of concerns with this Agreement and my Associate wrote to the employer on 27 September 2010 outlining those concerns.
[3] In that correspondence my Associate:
1) Confirmed that the relevant Award for the purpose of the Better Off Overall Test is the Royal Australian College of General Practitioners and General Practice Training Employees Award 2003.
2) Noted that the F17 Form submitted by the employer implied that the notice of representational rights had not been issued in the form required by the regulations. Details of the notices that had been issued were included. I expressed concern that the various forms of the notice of representational rights may be inconsistent with the legislation. In particular, I advised that “the legislation makes it clear that an employee must be advised that if they are a member of a relevant union the union will be their bargaining representative unless they appoint someone else. The various notices seem to advise union members that they may nominate the union or you may nominate someone else. The implication appears to be that you have to nominate the union if you want them to be your representative. The Commissioner would appreciate any further submission you may wish to make about this matter”.
3) Noted that 175 employees participated in the vote on the Agreement and that therefore a minimum of 88 votes were required for the Agreement to made. The F17 Form says that there were in fact only 88 votes for the Agreement.
4) Raised a number of issues where it appeared that the Agreement provided for less beneficial conditions than the Award and that this raised some questions as to whether or not the Better Off Overall Test was met.
[4] I raised a number of other issues which were resolved through further information provided by the employer.
[5] Following receipt of further advice from the employer I then suggested that the concerns in respect to the Better Off Overall Test could be overcome by the provision of certain undertakings. The basis of these undertakings was that the Agreement reduced entitlements to personal leave and redundancy when compared to the Award for some categories of employees. This disadvantage could be overcome by ensuring that wages paid were at least 2.8 weeks per year greater than the Award and ensuring that employees were entitled to additional unpaid personal leave. The suggested undertakings were as follows:
“To avoid doubt the second sentence of Clause 35. 2 will not apply. An employee will be paid overtime where additional hours are worked with the consent of the appropriate manager and no employee is expected or required to work overtime hours except where it is with the consent of the appropriate manager.
The RACGP undertakes that in the rates of pay in Schedule 1 will be adjusted in the first column of figures (the third column of the table) as follows and that the other columns will be adjusted accordingly as a result of these adjustments:
• Level A the minimum rate is increased by $5757 to $43,329.32.
• 16 years the rate is increased by $2377 to $25095.5
• 17 years the rate is increased by $2283 to $27686.4
• 18 years the rate is increased by $2186 to $30291.7
• 19 years the rate is increased by $2090 to $32889.3
• 20 years the rate is increased by $1994 to $35485.8
The RACGP undertakes that in addition to clause 47.1 leave without pay the employer will authorise unpaid leave for personal leave purposes where paid leave is exhausted and where the evidence required for personal leave is provided of up to 8 days per year the entitlement to the first 3 days of which shall accumulate from year to year if those first three days are unused.
The RACGP undertakes that where junior employees or employees classified at Level A are required for jury service and that jury service extends beyond the 10 days the additional time will be granted as paid leave.”
[6] The employer suggested that the calculations I used in preparing the undertakings had not taken into the account the benefit to employees of the additional superannuation paid by the employer under the Agreement. The employer is correct about this matter however the additional superannuation does not apply to casual employees.
[7] I advised the Employer that:
“If you are prepared to make the undertaking then please provide a signed undertaking prior to the hearing on 11 October and a copy of the undertaking should be provided to the bargaining representatives so that they may comment. The undertaking can be sent to us by email.
The Commissioner remains concerned about the issue concerning the notice of representational rights. The Commissioner appreciates and will take into account the submissions made in respect of this matter in your correspondence. If you wish to make any further submission you can do so at the hearing on 11 October”.
[8] The bargaining representative for the Agreement, the National Tertiary Education Union (NTEU), advised the Tribunal that it had campaigned for a “no” vote when the Agreement was put the employees. The NTEU submitted that the requirements under Section 186 and 187 of the Act had not been met. They submitted that the BOOT was not met, that the notice of representational rights had not been issued in the proper form, that the steps required by Section 180 in explaining the terms of the Agreement had not been met, and that there was an absence of genuine agreement as required by Sections 186 and 188.
[9] On 7 October 2010 the Employer wrote to me as follows:
“Having conducted a further review of the concerns expressed by Fair Work Australia in recent correspondence, the Royal Australian College of General Practitioners (RACGP) concedes that a complying Notice of Employee Representational Rights was not provided to employees given it did not contain the content required by s174(3) of the Fair Work Act 2009.”
[10] On the basis of this correspondence it was not necessary to consider the issues further since I cannot approve an Agreement unless Section 181(2) is complied with. Section 181(2) requires that a notice under Section 173(1) must have been issued. That notice must comply with Section 174 which specifies the content of the notice. It is my view and in this case the employer has agreed with me that the notices issued in this case do not comply with this requirement.
[11] The Application for the approval of the Agreement is therefore dismissed.
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