Sims E-Recycling

[2013] FWC 10173

[2013] FWC 10173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sims E-Recycling
(AG2013/12052)

COMMISSIONER RYAN MELBOURNE, 24 DECEMBER 2013

Application for approval of the Sims E-Recycling Collective Agreement Victoria 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Sims E-Recycling Collective Agreement Victoria 2013 (the agreement)was filed with the Fair Work Commission (the Commission) on 18 December 2013.

[2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) sworn by Mr Paul Fisher, Employee Relations Manager Australia & New Zealand for Sims E-Recycling. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of Employee Representational Rights (a Notice) to employees on 12 February 2013.

[3] Amendments to the Fair Work Act2009 (the Act) which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) of the Act states as follows:

“Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.”

[4] Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations) sets out the terms of a Notice as follows:

“Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies—include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

[If a low-paid authorisation applies to the agreement—include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument—include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

• the nominal expiry date of your existing agreement has passed; or



• a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).




Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].”

[5] The Notice issued to employees in relation to this agreement contains the content prescribed by the regulations but also contains other content. The most critical defect in the Notice issued to employees was a statement that employees had to provide the employer with any appointment of a bargaining representative within 7 days of receiving the Notice. The scheme of the Act makes clear that an employee can appoint a bargaining representative at any time whilst bargaining is occurring. The Notice issued to employees severely restricted the employees rights under the Act.

[6] Non compliance with s.174(1A) of the Act by the employer means that there is no valid enterprise agreement before me.

[7] The application in this matter is therefore dismissed.

Observations

[8] I have considered the terms of the proposed agreement and, had the application been validly made, I would have raised a number of concerns in relation to the contents of the agreement. To assist the employer I make the following observations as to the contents of the agreement. These observations are not part of the decision in this matter.

Clause 6.2

[9] The agreement provides that it covers employees of the employer employed at 195 Forster Rd Mount Waverly, Victoria. However clause 6.2 of the agreement then permits the employer to transfer employees either temporarily or permanently to other sites owned and operated by the employer.

[10] This agreement does not apply to or cover any other sites operated by the employer.

[11] The Notice that was issued to employees indicated that the employer intended to bargain for an agreement that would cover wages employees “at the Oakleigh site at Building 4a, 1090 - 1124 Centre Road, Oakleigh South, Vic, 3167 and directly related satellite yards”.

[12] If the intention of the agreement is to apply to the main site and to satellite yards then clause 6 should make this clear. As it stands it would be permissible (if the agreement was approved in its present terms) for the employer to transfer employees to sites which were not satellite yards of the Mount Waverly site but stand alone sites in their own right. The Commission is aware that other sites operated by the employer have separate enterprise agreements.

[13] What agreement would apply to employees who were transferred even temporarily from the Mount Waverly site?

Clause 16

[14] Clause 16 creates an obligation on employees to “satisfy organisation standards, policies and procedures during all work periods.” Non compliance with an ‘organisation standard’ or any ‘policy and procedure’ would mean that the employee has also breached a term of the agreement and thus could be subject to a civil penalty.

[15] There is no equivalent provision in the modern award and the presence of clause 16 would weigh heavily against the agreement passing the better off overall test.

[16] It is not clear whether clause 16 intends to incorporate “organisation standards, policies and procedures” into this agreement. If such material was intended to be incorporated then it is clear from the F17 that none of the incorporated material was available to employees within the access period nor was any of it filed with the application in this matter.

Clause 17.2

[17] Clause 17.2.2 provides for part time employment which is absent some of the protections contained in clause 11 of the relevant modern award.

Clause 22.2.1

[18] Clause 22.2.1 appears to permit the employer to alter the span of ordinary hours simply by giving 24 hours notice to employees. It may be that the clause was intended to permit the employer to alter the start and finish times of employees within the span of ordinary hours set in clause 22.2 however this has not been clearly provided for.

Clause 23

[19] The roster provisions of clause 23 also appear to permit the employer to alter the span of ordinary hours. The relationship between clauses 22, 23 and 26 is not clearly articulated.

Clause 33.9.1

[20] Clause 33.9.1 contains a cashing out of annual leave provision which does not meet the requirements of s.93 of the Act, in particular s.93(2)(a).

Clause 34.7

[21] Clause 34.7 appears to provide a limitation on the use of personal/cares leave for carers purposes.

Clause 34.11

Clause 34.11 requires employees to provide their supervisor or manager with notice of the use of personal/carers leave before the period of leave commences. This requirement is contrary to the explicit language of s.107(2)(a).

COMMISSIONER

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