Secure Labour Pty Ltd
[2010] FWA 9882
•21 DECEMBER 2010
[2010] FWA 9882 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Secure Labour Pty Ltd
(AG2009/20603)
COMMISSIONER ASBURY | BRISBANE, 21 DECEMBER 2010 |
Secure Labour Pty Ltd Enterprise Agreement 2009.
[1] This is an application under s.185 of the Fair Work Act 2009 (the Act) for approval of the Secure Labour Pty Ltd Enterprise Agreement 2009.
[2] On 15 December 2010 the following email was sent to the Applicant:
“I refer to the application for approval of the Secure Labour Pty Ltd Enterprise Agreement 2009. The application is being dealt with by Commissioner Asbury. After considering the Agreement Commissioner Asbury has the following concerns in relation to whether the Agreement passes the no-disadvantage test when compared to the reference instruments nominated by the employer for this purpose.
Section 186(5) of the Fair Work Act 2009 (the FW Act) provides that:
“Requirement for a nominal expiry date etc.
FWA must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which FWA approves the agreement.”
Section 54 of the Fair Work Act 2009 (the Act) provides that an enterprise agreement approved by FWA operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day.
Clause 1 of the Agreement provides that it operates from date of lodgement and continues for four years from that date. It is assumed that it is the intention of the parties that the Agreement will have a nominal expiry date of 23 December 2013. The Commissioner will accept an undertaking in relation to this matter in the following terms:
Notwithstanding clause 1, this Agreement will remain in force until 23 December 20103.
The Commissioner is of the view that the quantum and timing of any deductions from wages must be agreed by the employee in writing, and deductions must not result in an employee earning less than the Federal Minimum Wage in the period the deduction is made. In the absence of these protections employees will be disadvantaged when it is considered that the reference instruments do not provide for deductions, and statutes governing deductions, including the Act, provide for similar protections. The Commissioner will accept an undertaking in relation to this matter in the following terms:
The employer will not make deductions from wages without written agreement from an employee in relation to the quantum and timing of deductions. In no case will the deduction result in an employee being paid less than the Federal Minimum Wage in the period in which it occurs.
In relation to clause 9.11 Voluntary Overtime, the Commissioner is of the view that the wage rates in the Agreement are not sufficient to offset the removal of overtime penalty payments, and as such the Agreement does not pass the no-disadvantage test. Consistent with the decision of a Full Bench of FWA in BUPA Care Services and Others [2010] FWAFB 2762 such a provision will not pass the no-disadvantage test in circumstances where the Agreements to do not provide a benefit to offset the reduction in the entitlements of employees to be paid overtime. That decision also establishes that the fact that employees have volunteered to work what would be overtime hours and to be paid at ordinary rates, is not a benefit that can be taken into account in deciding whether an agreement passes the no-disadvantage test.
The wage rates in the Agreements are not sufficiently above the rates in the relevant reference instrument to offset the removal of overtime penalties, and there is no apparent benefit so that it can be said that the voluntary overtime clause does not disadvantage employees.
The Commissioner requires an undertaking in each case that the employer will not refer to, rely on or apply clause 9.11 voluntary overtime of the Agreement and will not accept volunteers under the clause.
Clause 12.3 is inconsistent with the model flexibility term that is required to be included in the Agreement. The model term requires that an agreement must result in an employee being better off overall than the employee would be if no agreement was made. The Commissioner requires an undertaking in relation to this matter.
The Commissioner is required to be satisfied that an employee who is a continuous shift worker as defined in the Act is entitled to five weeks annual leave. The Commissioner will accept an undertaking that:
Where the employer rosters shifts continuously 24 hours a day for seven days a week, and an employee is regularly rostered to work those shifts, and regularly works on Sundays and public holidays, the employee will be entitled to five weeks annual leave for each year of service.
The Commissioner has an issue with clause 30 of the Agreement in relation to confidential information. Such a provision is not generally found in an Award and is not found in the relevant Award in the present case. Provisions dealing with confidentiality are generally found in common law contracts of employment, and there is no reason why those matters cannot be dealt with in that way in respect of the employees covered by the Agreement. The Commissioner is of the view that such provisions when included in an enterprise agreement:
• Do not pertain to the employment relationship to the extent that they purport to operate after that relationship has ceased;
• Disadvantage employees as they are not contained in the relevant reference instrument and would but for the Agreements be common law provisions dealt with in a court with equitable jurisdiction and subject to principles such as reasonableness; and
• Expose employees to civil penalties under the Fair Work Act for breach of the Agreement.
The Commissioner is also concerned as to whether the effect of such terms, in the context of the above matters, was explained to employees, particularly whether the implications of being liable for a civil penalty for breach under the Fair Work Act.
To address this issue, the Commissioner will accept an undertaking in the following terms:
The employer will not refer to, rely on or apply clause 30 Confidential Information, to the extent that the clause purports to operate after employment has ceased. To the extent that the clause operates, the employer will not apply to impose on an employee a civil penalty under the Fair Work Act 2009 for breach of clause 30 Confidential Information, of this Agreement.
In relation to clause 31, the Commissioner requires an undertaking that:
For the purpose of clause 31 of the Agreement, policies and procedures for the purpose of this clause, are limited to those that are reasonably made known to the employee and are available in writing in the workplace.
In relation to clause 32, the relevant Awards do not provide the right for an employer to stand down employees without pay. This is a disadvantage to employees in comparison to the Awards. The Commissioner requires an undertaking that the employer will not refer to, rely on or apply clause 32 to the extent that it provides for employees to be stood down without pay.
If you are prepared to provide these undertakings, please sign the attached document and return it to me by 4.00 pm on Thursday 16 December 2010. The Agreement will then be approved and the undertakings will be a term of the Agreement. If you do not wish to give the undertakings, please advise by 4.00 pm on Thursday 16 December 2010 and the matter will be listed for hearing. Failure to provide this advice and the undertaking requested may result in the application for approval of the Agreement being refused.”
[3] On 20 December 2010 no reply had been received from the Applicant. My Associate contacted the Applicant on the telephone number provided in the application, and was informed that the contact person identified on the application no longer worked for the Applicant, and Secure Labour Pty Ltd had in fact ceased trading some time ago.
[4] For the reasons set out in the email of 15 December 2010 I am of the view that the Agreement in its current form does not pass the no-disadvantage test as required under s.286(2)(d) of the Act, as modified by item 2(1)(a) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). I am also of the view that due to the Applicant no longer trading as a Company, there is no requirement for the approval of this application.
[5] In the circumstances, the application for approval of the Agreement is refused. I order accordingly.
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