Springvale RSL Sub-Branch Inc
[2011] FWA 910
•16 FEBRUARY 2011
[2011] FWA 910 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Springvale RSL Sub-Branch Inc
(AG2010/12069)
COMMISSIONER GOOLEY | MELBOURNE, 16 FEBRUARY 2011 |
Springvale RSL Sub-Branch Inc Enterprise Agreement 2010.
[1] An application has been made for approval of the Springvale RSL Sub-Branch Inc Enterprise 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 Springvale RSL Sub-Branch Inc (the Springvale RSL). The agreement is a single enterprise agreement.
[2] The bargaining representative for the Springvale RSL was SIAG Pty Ltd (SIAG). On 26 July 2010 I wrote to SIAG and raised a number of concerns about the Agreement.
[3] Mr Peter Smith the General Manager, filed a Statutory Declaration in support of the application which advised that the last notice of representational rights was given on 29 May 2010 and that voting commenced on 14 June 2010. On the basis of this information the Agreement could not be approved as the pre-approval requirements of the Act had not been complied with.
[4] The Statutory Declaration provided no information on what steps the employer had taken to explain the terms of the Agreement to the employees.
[5] The Statutory Declaration further advised that there were no less beneficial conditions in the Agreement compared with the reference instruments. The Statutory Declaration advises that the more beneficial terms were the wage increases and paid maternity leave.
[6] The reference instrument is the Registered and Licensed Clubs Award 2010 (the Award). 1
[7] I identified the following provisions as less beneficial in an email to SIAG on 26 July 2010:
1. The rates of pay in the Agreement are below the rates of pay in the Award having regard to the transitional provisions.
2. The Award provides for part time employees to have a regular pattern of work which can only be varied by agreement with any additional hours being overtime.
3. The Award provides part time employees with a minimum call of three hours.
4. The penalties for employees working after midnight and before 7am are higher under the reference instrument.
[8] I also advised that the definition of continuous service in the Agreement could result in the personal leave entitlements being less than the National Employment Standards and the definition of spouse was inconsistent with the definition of spouse in the Act.
[9] A hearing was held on 9 August 2010 and Mr Bob Ironmonger appeared for the Springvale RSL.
[10] At that hearing Mr Ironmonger advised that the date of the last notice of representational rights had been changed by hand in the Statutory Declaration. He suggested that this was done by him and that this was an error. 2 Mr Ironmonger was not the deponent to the Statutory Declaration. I assume Mr Ironmonger changed the date before the deponent signed the declaration. However it is the responsibility of the deponent to ensure that all the matters deposed to are correct.
[11] As a consequence I required a further Statutory Declaration to be filed.
[12] Mr Ironmonger indicated that the Springvale RSL would provide undertakings in relation to some of the matters raised.
[13] I wrote to Mr Ironmonger on 8 September 2010 about the proposed undertakings and the Statutory Declaration.
[14] There was then an exchange of emails between my chambers and SIAG and on 25 November 2010 I again contacted SIAG and asked for a copy of any proposed undertakings to be forwarded to chambers.
[15] A conference with SIAG was held in chambers on 6 December 2010 to discuss the outstanding issues.
[16] On 17 December 2010 a revised Statutory Declaration was filed which addressed my concerns about the pre approval steps. However despite the matters identified in my earlier email and discussed with SIAG at the hearing the revised Statutory Declaration only identified the late and early work penalties as less beneficial.
[17] On 12 January 2011 I again wrote to SIAG seeking a copy of the proposed undertakings which were received on 25 January 2011. On 27 January 2011 I contacted SIAG and expressed my concerns about the rates being below the rates in the reference instrument and that the employees would be paid the rates in the reference instruments. I received a response to those concerns on 28 January 2011 and signed undertakings on 8 February 2011.
Better off overall test (BOOT)
[18] The rates of pay in the Agreement are, for some classifications, less than the rates in the Award when regard is had to the transitional provisions.
[19] However the Agreement provides at clause 11(c) as follows:
“Any further wage increase shall be at the discretion of the Employer, unless the rate of pay falls below the Modern Award rate (with reference to the transitional provisions), in such circumstances the rate of pay shall default to the minimum rate prescribed in accordance with the relevant Modern Award rate (with reference to the transitional provisions).”
[20] I therefore, for the purposes of the BOOT, accept that the employees will be paid the minimum rates payable under the Award.
[21] The Agreement provides for lesser entitlements than the Award as follows:
1. Part time employees both in relation to the working of ordinary hours, overtime and the minimum call.
2. The Agreement does not provide for conversion of casual employees to weekly employees.
3. The meal Allowance is less than the meal allowance in the modern award.
4. The definition of continuous service in the Agreement is less beneficial than the definition in the Act and may result in entitlements to annual leave and personal leave being less than the National Employment Standards.
[22] The Agreement provides for paid parental leave 3 which is a more beneficial entitlement than provided for in the Award.
[23] In deciding whether to approve the Agreement, Fair Work Australia is required to consider whether each award covered employee or prospective employee would be better off. In doing so “if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.” 4
[24] As the rates for some classifications in the Agreement are less than those provided for in the Award and some of the terms are less beneficial for employees, even when regard is had to the provision of paid parental leave, the Agreement does not result in all employees being better off if the Agreement applied to them.
Undertakings
[25] Section 190 of the Act provides that if Fair Work Australia forms the view that the Agreement does not meet the requirements set out in section 186, and in this case section 186(2)(d), Fair Work Australia may accept written undertakings provided the undertakings are not likely to cause financial detriment to any employee covered by the Agreement or would not result in substantial changes to the Agreement.
[26] Springvale RSL provided undertakings to the Tribunal as follows:
“(1) The provisions of Clause 12(e) - Regular Part Time Employment of the Springvale RSL Sub-Branch Inc Enterprise Agreement shall include additional subclauses pertaining to agreed contracted hours for part-time employees as follows:
(v) The employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the numbers of hours worked each day and which days of the week the employee will work. The span of ordinary hours shall also be specified.
(vi) A part-time employee may agree to vary their contracted hours, as per (c), and such agreement must be recorded in writing. Signing a varied roster prior to undertaking the varied hours shall constitute an agreement in writing for the purposes of this clause.
(vii) Where agreement has been reached in accordance with (v) or (vi) a part-time employee who is required by the employer to work in excess of those agreed hours must be paid overtime in accordance with clause 18.
(2) We confirm that the minimum period of engagement of a permanent part-time employee shall be three hours, instead of the two hours stated in sub-clause 12(e) (iii).
(3) The provisions of subclause 8(k) - Definitions -Continuous Service will not be applied to any employees covered by the Agreement. Instead, the definition of continuous service shall be in accordance with S22 of the Fair Work Act 2009.
(4) For the purposes of this Agreement, the definition of immediate family, specifically referred to in sub-clause 25(a) and 26(d), shall read:
For the purposes of this clause “Immediate family” means:
(a) a spouse, de facto partner, child (including an adult child, adopted child or a step child), parent, grandparent, grandchild or sibling of the employee; or
(b) a child (including an adult child, adopted child or a step child), parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.
Further, a spouse includes a former spouse.
The definition of a “de facto partner” shall mean a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes); and includes a former de facto partner of the employee.
(5) For the purposes of sub-clause 19(b) – Penalty Rates, the penalty prescribed under this sub-clause for work performed between midnight to 7.00am will not be applied to any employees covered by this Agreement. Instead, the penalty rates will be as follows:
(i) Full-time and Part-time employees - $1.80 per hour or any part of an hour for such time worked within the said hours.
(ii) Casual employees - $0.52 per hour or any part of an hour for such time worked within the said hours.
(6) A copy of these undertakings will be affixed to all copies of this Agreement distributed by the employer. The employer will forward to all employees a copy of these undertakings with an appropriate explanation of its effect.”
[27] In relation to my concerns about the rates of pay and my concerns that the employees may have been misled about the increases payable under the Agreement I was advised by SIAG that the employees would be paid in accordance with the transitional rates and as the first wage increase payable under the Agreement was not expressed as a percentage employees were not misled. However clause 11 and Appendix 1 of the Agreement indicates that employees will receive a 3% pay increase on 1 July 2011. If the rates currently required to be paid are those in the Award then a 3% wage increase will not occur on 1 July 2011. For example the current rate of for a Food and Beverage Attendant is $573.04 per week. The increase on 1 July 2011 will therefore be 2.4%. However given my decision in relation to the undertakings it is not necessary to determine if employees were misled about the wage increases.
[28] The undertakings provided go some way to addressing my concerns about the Agreement. However all the undertakings do is eliminate the conditions in the Agreement which were less beneficial than the Award. Given that the rates of pay in the Agreement for some employees are equivalent to those in the Award and that the only additional benefit, identified by the Moe RSL in the Statutory Declaration filed in this proceeding, is paid parental leave, I have determined that undertakings do not sufficiently address my concerns about the Agreement. While I accept that paid parental leave is a benefit, it is only relevant for particular employees namely those who qualify or will qualify for paid parental leave. Casual employees for example will not receive any benefit from the provision of paid parental leave.
[29] The Act provides that employees must be better off as a result of the making of the Agreement and in this case I have not found that they are better off even taking into account the undertakings and the paid parental leave. I therefore decline to approve the Agreement.
COMMISSIONER
1 MA000058
2 Transcript PN 6
3 See answer to question 3.5 in the Statutory Declaration filed by Peter Smith.
4 Section 193(7)
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