Sydney Water Corporation t/a Sydney Water
[2011] FWA 4278
•5 JULY 2011
[2011] FWA 4278 |
|
DECISION |
Fair Work Act 2009
s 217 - Application to vary an agreement to remove an ambiguity or uncertainty
Sydney Water Corporation t/a Sydney Water
(AG2010/15705)
DEPUTY PRESIDENT SAMS | SYDNEY, 5 JULY 2011 |
Application to vary an agreement to remove an ambiguity or uncertainty – application approved.
[1] An application, pursuant to s 217 of the Fair Work Act 2009 (‘the Act’) was filed on 15 December 2010, by Sydney Water Corporation t/a Sydney Water which seeks to remove an ambiguity or uncertainty in respect to parental leave under the Sydney Water Enterprise Agreement 2009 (ID AE874993) and the Sydney Water Trades and Apprentices Enterprise Agreement 2010 (ID AE878307) (‘the Agreements’). The ambiguity or uncertainty was said to arise in respect to the interaction of the Federal Government’s paid parental leave scheme under the Paid Parental Leave Act 2010 and clause 26.2.2 and clause (e) of Schedule 6 of the Sydney Water Agreement as it applies to eligible employees employed by Sydney Water.
[2] Clause (e) of Schedule 6 is as follows:
e) Increases to paid parental leave
(i) The increased entitlements to paid parental leave that are provided for by subclause 26.2.2 and are described as taking effect from 1 January 2011 will, despite any other term of this Agreement, only take effect if the paid parental scheme proposed by the Federal Government (at the time this agreement comes is approved) commences.
[3] Shortly stated, the issues between the parties stem from the fact that Sydney Water had in place a parental leave scheme before the Federal Government’s scheme came into effect. Clause (e) of Schedule 6 is a facilitative provision which reflected what the parties believed would be the substance of the Government’s scheme. However, the Government scheme ultimately did not reflect what the parties had envisaged at the time.
[4] The Tribunal has chaired a number of conferences with the parties and the parties themselves have been engaged in comprehensive negotiations over several months in order to resolve the matter. Despite these conferences, the matter remained unresolved and the Tribunal issued directions on 16 March 2011 for the arbitration of the matters in dispute. No dates were set for the arbitration. However, on 28 June 2011, the Tribunal was advised that a settlement had been reached and the parties requested a short hearing to conclude the matter.
[5] On 1 July 2011, the Tribunal listed the matter. It became apparent that the preferred mechanism for resolving the dispute was a variation to the Agreements pursuant to s 211 of the Act. I dispensed with any formalities in respect to an application seeking to vary an enterprise agreement, although Sydney Water had filed a non-specific form (F1).
[6] At the hearing, Mr R Ferrier with Mr R Hutchinson appeared for the Sydney Water, and Mr B Kruse appeared for the Australian Municipal, Administrative, Clerical and Services Union known as the Australian Services Union (ASU), Mr J Lee for the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and Mr J Kennedy for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU). All parties sought FWA’s approval to vary the Agreements in the following terms:
1. Delete the existing clause 26.2.2 of the Sydney Water Enterprise Agreement 2009 and replace with:
26.2.2 For employees who have completed 40 weeks of continuous service the entitlement provided under clause 26.2.1 is inclusive of the following periods of paid leave, as relevant:
Prior to 1 January 2011 | From 1 January 2011 | |
Where the employee is the birth mother of the child | 14 weeks paid maternity leave | 18 weeks paid maternity leave |
Where the employee is the spouse or de facto partner of the birth mother | 1 weeks paid partners leave | 6 weeks paid partners leave |
Where the child placed with the employee is under 5 years of age | 14 weeks paid adoption leave | 18 weeks paid adoption leave |
26.2.2.a The entitlements to paid parental leave described as taking effect from 1 January 2011 are inclusive of any entitlement an employee has to paid parental leave under the Federal Government scheme.
26.2.2.b The employee will be required to demonstrate that they have submitted an application and been assessed for Paid Parental Leave under the Federal Government scheme, including providing a statutory declaration.
26.2.2.c An employee who does not comply with clause 26.2.2.b will only be entitled to paid parental leave described as taking effect from 1 January 2011 less the value of paid parental leave under the Federal Government scheme.
26.2.2.d An employee who is not eligible for paid parental leave under the Federal Government scheme, but otherwise meets the requirements of this clause will be entitled to paid parental leave described as taking effect from 1 January 2011.
26.2.2.e The full period of paid parental leave shall be counted as service for the purposes of leave accruals and superannuation. This includes any component related to an entitlement to paid parental leave under the Federal Government scheme.
2. Delete the existing clause 25.1.2 of the Sydney Water Trades and Apprentices Enterprise Agreement 2010 and replace with:
25.1.2 For employees who have completed 40 weeks of continuous service the entitlement provided under clause 25.1.1 is inclusive of the following periods of paid leave, as relevant:
Prior to 1 January 2011 | From 1 January 2011 | |
Where the employee is the birth mother of the child | 14 weeks paid maternity leave | 18 weeks paid maternity leave |
Where the employee is the spouse or de facto partner of the birth mother | 1 weeks paid partners leave | 6 weeks paid partners leave |
Where the child placed with the employee is under 5 years of age | 14 weeks paid adoption leave | 18 weeks paid adoption leave |
25.1.2.a The entitlements to paid parental leave described as taking effect from 1 January 2011 are inclusive of any entitlement an employee has to paid parental leave under the Federal Government scheme.
25.1.2.b The employee will be required to demonstrate that they have submitted an application and been assessed for Paid Parental Leave under the Federal Government scheme, including providing a statutory declaration.
25.1.2.c An employee who does not comply with clause 25.1.2.b will only be entitled to paid parental leave described as taking effect from 1 January 2011 less the value of paid parental leave under the Federal Government scheme.
25.1.2.d An employee who is not eligible for paid parental leave under the Federal Government scheme, but otherwise meets the requirements of this clause will be entitled to paid parental leave described as taking effect from 1 January 2011.
25.1.2.e The full period of paid parental leave shall be counted as service for the purposes of leave accruals and superannuation. This includes any component related to an entitlement to paid parental leave under the Federal Government scheme.
[7] The parties also tendered exchanges of correspondence between them dealing with transitional arrangements which arise from the agreement reached. These understandings will form part of the record of the proceedings.
[8] Having a detailed knowledge of the issues relevant to this matter and considering the consent of the parties to the variation of the Agreement, I propose to vary the Agreements as sought. I note that the new arrangements provide certainty for both the employer and employees and represent a significant benefit for eligible employees to paid maternity and partners’ leave. I commend the parties for both the agreement reached and the substance of that agreement.
[9] Given that clause (e) of Schedule 6 of the Agreement is a facilitative provision now made redundant by this variation, I will also order its deletion from the Sydney Water Enterprise Agreement 2009. Orders giving effect to this decision and varying both Agreements accordingly will accompany the publication of this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code C, PR511234>
0
0
0