Syrah Pty Ltd
[2009] FWA 310
•5 OCTOBER 2009
[2009] FWA 310 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/12161)
BARWON HEADS BRIDGE PROJECT GREENFIELDS SITE SPECIFIC AGREEMENT 2009
Building, metal and civil construction industries | |
COMMISSIONER GAY | MELBOURNE, 5 OCTOBER 2009 |
Application for approval of the Barwon Heads Bridge Project Greenfields Site Specific Agreement 2009.
[1] Pursuant to section 195 of the Fair Work Act 2009 (the Act), an application has been made by Syrah Pty Ltd for approval of an enterprise agreement known as the Barwon Heads Bridge Project Greenfields Site Specific Agreement 2009 (the Agreement).
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.
[4] Section 202 of the Act requires an Agreement to contain a flexibility term which meets certain requirements. In the absence of such a term, the model flexibility clause, provided for in the Fair Work Regulations 2009 (the Regulations) is taken to form part of the Agreement. Section 202 of the Act relevantly provides:
“202 Enterprise agreements to include a flexibility term etc.
Flexibility term must be included in an enterprise agreement
(1) An enterprise agreement must include a term (a flexibility term) that:
(a) enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and
(b) complies with section 203.
…
Model flexibility term
(4) If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement.
(5) The regulations must prescribe the model flexibility term for enterprise agreements.”
[5] On the Form F20—Employer’s Declaration in Support of Application for Approval of Greenfields Agreement, the Applicant indicated that the requisite flexibility term could be found at Clause 11.3.6. Upon closer examination, the Agreement does not appear to contain a Clause 11.3.6, nor does there appear to be a flexibility term contained elsewhere. In an email dated 17 September 2009 Mr Kelly, the authorised bargaining agent for Syrah Pty Ltd, indicated that he proposed “to incorporate the model clauses into the agreement (sic) that are currently omitted.” Consistent with s.201(1)(b)(i) I note that the model flexibility term, found at Schedule 2.2 of the Regulations, is taken to be a part of the Agreement. The model flexibility term is extracted below:
“Model flexibility term
(1) An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:
(a) the agreement deals with 1 or more of the following matters:
(i) arrangements about when work is performed;
(ii) overtime rates;
(iii) penalty rates;
(iv) allowances;
(v) leave loading; and
(b) the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and
(c) the arrangement is genuinely agreed to by the employer and employee.
(2) The employer must ensure that the terms of the individual flexibility arrangement:
(a) are about permitted matters under section 172 of the Fair Work Act 2009; and
(b) are not unlawful terms under section 194 of the Fair Work Act 2009; and
(c) result in the employee being better off overall than the employee would be if no arrangement was made.
(3) The employer must ensure that the individual flexibility arrangement:
(a) is in writing; and
(b) includes the name of the employer and employee; and
(c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and
(d) includes details of:
(i) the terms of the enterprise agreement that will be varied by the arrangement; and
(ii) how the arrangement will vary the effect of the terms; and
(iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and
(e) states the day on which the arrangement commences.
(4) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
(5) The employer or employee may terminate the individual flexibility arrangement:
(a) by giving no more than 28 days written notice to the other party to the arrangement; or
(b) if the employer and employee agree in writing—at any time.”
[6] In the same way that the Act requires an Agreement to contain a flexibility term, s.205 requires a consultation term. In the absence of such a term, the model consultation term, found in the Regulations, is taken to form part of the Agreement. Section 205 relevantly provides:
“205 Enterprise agreements to include a consultation term etc.
Consultation term must be included in an enterprise agreement
(1) An enterprise agreement must include a term (a consultation term) that:
(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and
(b) allows for the representation of those employees for the purposes of that consultation.”
(emphasis added)
[7] On the Form F20, Mr Kelly has indicated that a consultation term can be found at Clause 7—Consultation of the Agreement. Clause 7 reads as follows:
“7.0 Consultation
The parties agree that the establishment of a joint consultative committee is desirable. A Joint Consultative Committee may be established and its roll will be:
- to monitor the implementation and on-going operation of this Agreement, and to seek remedies where the objectives of the Agreement are not being met;
- to develop and monitor key productivity improvements, and to measure the effectiveness of those initiatives;
- to monitor the implementation of training measures the purpose of which will be to advance the concept of continuous workplace training and skills enhancement; and;
- The Committee shall consist of equal representation of both workers and the employer, and shall not be less than four members in total.
The Committee may at its discretion determine to call on other persons or experts to attend the Committee and to advice it on specific matters of concern to the Committee. Employee representatives will be allowed reasonable time during working hours to prepare for the meetings.
The Committee will usually meet at least bimonthly during the life of this’ (sic.) Agreement and will be jointly chaired by a representative of the employers and a nominated representative of the employees.
It shall not be open to the Consultative Committee to reach resolutions which negate or amend the terms or intent of this Certified Agreement (sic.)”
[8] The term provided for in the Agreement does not, in my view, satisfy the obligation imposed by s.205. This is because it does not unequivocally require the employer to consult employees about major workplace changes of the character described at s.205(1)(a). The Joint Consultative Committee may or may not be established, it has a limited scope of operation and although its jurisdiction covers important issues it is deficient for the reasons set out above. In the email referred to at paragraph [5] above, Mr Kelly indicated that Syrah Pty Ltd will allow the incorporation of the model consultation term, which can be found at Schedule 2.3 of the Regulations. The model term will be incorporated into the Agreement in supplementation of the existing term. The model consultation term provides for the following:
Model consultation term
(1) This term applies if:
(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and
(b) the change is likely to have a significant effect on employees of the enterprise.
(2) The employer must notify the relevant employees of the decision to introduce the major change.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion — provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(8) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.
(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
(10) In this term, relevant employees means the employees who may be affected by the major change.”
[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from the date of this Order. The nominal expiry date of the Agreement is 17 September 2012 or the completion of the project, whichever is sooner.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
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