Skye Mitchell, Leanne Sampson, Robert Dabb, Jarred Hopkins, Jack Michael, Sandra Mulvihill, Brendan Cilia, David Dewar, Melissa Tobin, Brenton Brown v Skilled Communications Personnel Pty Ltd
[2011] FWA 2383
•18 APRIL 2011
[2011] FWA 2383 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument
Skye Mitchell, Leanne Sampson, Robert Dabb, Jarred Hopkins, Jack Michael, Sandra Mulvihill, Brendan Cilia, David Dewar, Melissa Tobin, Brenton Brown
v
Skilled Communications Personnel Pty Ltd
(AG2011/7486)(AG2011/7489)(AG2011/7491)(AG2011/7492)(AG2011/7493) (AG2011/7494)(AG2011/7499) (AG2011/7500) (AG2011/7501) (AG2011/7502)
Telecommunications services
COMMISSIONER ROE | MELBOURNE, 18 APRIL 2011 |
Application to terminate the National Union of Workers and Skilled Customer Contact Services Pty Ltd (Call Centre Framework) Agreement 2003-2005.
[1] This decision concerns applications by ten individual employees (the Applicants) of Skilled Customer Contact Services Pty Ltd and related successor companies (the Employer) who are bound by the National Union of Workers and Skilled Customer Contact Services Pty Ltd (Call Centre Framework) Agreement 2003-2005 (the Agreement) to terminate the Agreement pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s 225 of the Fair Work Act 2009 (the FW Act).
[2] The applications referred to the Skilled Communications Personnel Call Centre Framework Agreement 2000-2003. I agreed to amend the applications to refer to the most recent agreement, the National Union of Workers and Skilled Customer Contact Services Pty Ltd (Call Centre Framework) Agreement 2003-2005 (the Agreement). The Applicants had not been aware that a new version of the agreement had come into effect. The agreements were not substantially different and all parties present at the hearing on 15 April 2011 consented to the amendment to the applications.
[3] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act (Item 2(5)(c)(v) of Schedule 3) with a nominal expiry date of 30 September 2005. I am satisfied that the Agreement has passed its nominal expiry date.
[4] The National Union of Workers (NUW) is listed as a party bound by the Agreement.
[5] At the hearing of this matter on 15 April 2011, the Applicants were represented by one of their number, Mr Jarred Hopkins. Mr Hopkins was assisted by two others of the Applicants, Mr Brendan Cilia and Ms Sandra Mulvihill. I was satisfied that Mr Hopkins was making submissions on behalf of the Applicants. Mr Hopkins submitted that there were another five employees who also supported the position of the Applicants. Mr Hopkins submitted that this meant that he was making submissions on behalf of all the employees engaged under the Agreement at the Windsor site.
[6] The Employer was represented by Ms Sue Jackel and the NUW was represented by Mr Dario Mujkic.
[7] The Applicants are employed answering and connecting “000” emergency calls. They work alongside other employees who are directly employed by Telstra. The direct employees are engaged under a different industrial instrument and are on different wages and conditions.
[8] The relevant Modern Award is the Telecommunications Services Award 2010 (the Award).
[9] The Employer and the NUW opposed the termination of the Agreement.
The Relevant Legislation
[10] Item 16 of Schedule 3 of the Transitional Act provides:
“16 Collective agreement-based transitional instruments: termination by FWA
(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”
[11] Subdivision D of Division 7 of Part 2-4 of the FW Act states:
“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 When FWA must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:
(a) FWA is satisfied that it is not contrary to the public interest to do so; and
(b) FWA considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”
[12] It is therefore necessary to consider each of the matters in s 226 to determine whether Fair Work Australia is required by that section to terminate the Agreement. I do not have a general discretion in this matter. Section 226 specifies the nature of considerations to be taken into account and the test to be applied to determine the matter.
[13] In an earlier decision concerning an application to terminate an agreement, I made the following observations:
“The FW Act is significantly different in two major respects from the WR Act in respect to the termination of agreements after their nominal expiry date where there is not agreement of all the parties covered by the agreement.
Firstly, the WR Act provided that the Tribunal must terminate an agreement in these circumstances unless it was contrary to the public interest. The FW Act retains the public interest requirement in s 226(a) and it is expressed in similar terms to the previous s 170MH(3) of the WR Act. However, the FW Act provides that, in addition to the public interest requirement, the Tribunal must only terminate the agreement if it considers it appropriate after considering all the circumstances, including the views of the parties and the likely effect of the termination on each of them (s 226(b)). This is significant since it is precisely these considerations which the AIRC previously found were distinguishable from the public interest. The AIRC previously found that evidence that termination of an agreement was opposed by employees and or would be likely to have an adverse impact on employees was not necessarily sufficient to activate the public interest. However, it is clear that the legislators have now decided that such matters are relevant considerations in their own right and may lead to a decision to refuse to terminate an agreement.
Secondly, Section 226 concerning the termination of agreements is found in Part 2-4 of the FW Act which deals with Enterprise Agreements. The legislative scheme and objects of the Act and the objects of Part 2-4 in particular in this respect are quite different from the WR Act. Part 8 of the WR Act which dealt with Workplace Agreements did not have separate objects. The FW Act places a strong emphasis on the objective of facilitating and enabling collective bargaining, bargaining in good faith and the making of enterprise agreements. The termination of an agreement without the agreement of all parties covered by the agreement must now be considered in this context. It is clearly a public interest consideration under s 226(a) if the termination of an agreement would be contrary to the objectives and scheme of the legislation in respect to facilitating and encouraging bargaining and agreements. It is also a context within which the interests of and effects on the parties should be considered as required by Section 226(b).
....
It has certainly been the case since the introduction of a legislative scheme for collective bargaining in Australia that the platform for bargaining replacement agreements has been with very few exceptions the old agreement. That is, the terms and conditions provided by the old agreement remain in place until a new agreement is negotiated by the parties. There has never been a drop dead date for agreements. The FW Act reinforces this by making the unilateral termination of agreements more difficult including by the introduction of s 226(b) and by the removal of any equivalent to Section 393 of the WR Act. The FW Act also reinforces this by removing the option of statutory individual contracts and by encouraging and facilitating bargaining in good faith.
The termination of an agreement in many cases will result in a significant shift in the balance of forces in bargaining. The legislature has deemed it fair to restrict the unilateral termination of agreements and to preserve a situation where in most cases collective agreements remain in place until a new agreement is negotiated to replace it.” ([2010] FWA 3483 Royal Automotive Club of Victoria (AG 2010/7729) at paragraphs 19-24, Print 996690)
[14] The uncontested submission of the Employer is that there are approximately 430 employees to whom the Agreement applies and these employees work at 19 sites, one of which is the Windsor Victoria site where the Applicants are employed. There has been a transmission of business from Skilled Customer Contact Services Pty Ltd to two other related companies in the Skilled group of companies. The transmission of business is consistent with Clause 8.4 of the Agreement.
[15] Having carefully considered all the submission of the Employer, the NUW and the Applicants, I adjourned the matter into conference. I also considered a number of earlier decisions of Fair Work Australia to which the parties to the proceedings referred. Following that conference I advised the parties of my decision to dismiss the applications to terminate the Agreement.
[16] Having compared the Agreement with the Award there is no doubt in my mind that the employees are significantly worse off under the Agreement than under the Award in a number of important respects. Many of the penalty payments under the Award are not applicable under the Agreement. The Employer submitted that they had “refreshed” the minimum hourly pay rates applicable to employees to ensure that the rates paid were not less than the rates applicable in the Award and they had also refreshed the conditions so that they were not in breach of the National Employment Standards. However, the Agreement has not been varied to reflect this and the variation to the rates is not enforceable in the same manner as the Agreement or the Award.
[17] The fact that the Agreement appears to disadvantage employees when compared to the Agreement is a strong public interest ground for the termination of an Agreement which has a nominal expiry date of 30 September 2005. In these circumstances it is unlikely that the termination of the Agreement would undermine the objective of facilitating bargaining and the making of agreements.
[18] I am satisfied that the Applicants represent the majority of employees to whom the Agreement applies at the Windsor site. If the Windsor site was the only site to which the Agreement applied then there would be strong case for the termination of the Agreement. However, as referred to earlier the employees at the Windsor site covered by the Agreement represent less than 4% of the employees covered by the Agreement. I therefore cannot conclude that the employees to whom the Agreement applies wish to terminate the Agreement.
[19] I must also take into account the views of the union party to the Agreement, the NUW and of the Employer and they both oppose the termination of the Agreement.
[20] The Applicants submitted that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on their behalf had sought negotiations about these matters but that the Employer had refused to negotiate and advised that they would only talk to individual employees.
[21] The Employer and the NUW submitted that new collective agreements had been negotiated for some of the employees previously covered by the Agreement and that there was an intention and a commitment to negotiate new collective agreements for the remaining employees including the Applicants and the Windsor site in particular.
[22] Following the conference I confirmed that the Employer has given a commitment in these proceedings that they will write to the each of the Applicants, with a copy for the file in this matter, committing to enter into bargaining for a new agreement covering the Applicants and confirming the time frame in which this will occur. The Employer also confirmed their commitment to recognise the representative(s) of the Applicants in this process whether that be the CEPU, the NUW or the Applicant(s) themselves as bargaining representatives.
[23] In my view this outcome is consistent with the objects of the Fair Work Act 2009.
[24] The Applicants are employees covered by the Agreement and can bring these applications under Section 225. I have considered the views of the employees, the employer and the NUW and also having considered the likely impact of any termination on them. I have also considered the commitment that now exists to bargain a new collective agreement. In the circumstances I do not think it is appropriate to terminate the Agreement having regard to the matters set out in Section 226(b).
[25] The applications are dismissed.
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