The Farmers Gate Pty Ltd T/A The Farmers Gate
[2010] FWA 3411
•3 MAY 2010
[2010] FWA 3411 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/21684)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 3 MAY 2010 |
The Farmers Gate Enterprise Agreement 2009 – Preferred Hours Clause – Application Dismissed
[1] An application has been made for approval of an enterprise agreement known as the The Farmers Gate Enterprise Agreement 2009 (the Agreement). The application was made pursuant s.185 of the Fair Work Act (the Act). The Agreement is a single-enterprise 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] On 15 March 2010 a letter was sent to the applicant’s representative, Mr Rick Baillie of Workplace Consultants (Qld) Pty Ltd stating:-
“It appears this application does not comply with the requirements of s.181 of the Fair Work Act 2009. You provided the last notice to employees under s.173(1) on 17 November 2009, and first requested that the employees approve the agreement by voting on it on 17 November 2009. There was not the required period of 21 days before the notice and the request.
Further, the agreement was not lodged within 14 days of being made.
Also, clause 1.6.3(c) does not provide that the employee be better off overall.”
[4] I invited a written submission to be provided addressing my concerns by Monday 22 March 2010.
[5] A response was received on 19 March 2010 stating that:
- the date specified at question 2.6 of the employer’s declaration was a clerical error and that the date should have been Wednesday 9 December 2009. Statutory declarations were provided correcting the date.
- this correction, the application appeared to comply with the requirements of s.181 of the Fair Work Act 2009, and the required period of 21 days before the notice and the request.
- Proof was provided that the lodgement had been made within 14 days of it being made.
- For the purposes of satisfying the no disadvantage test (NDT), the applicant noted there was no requirement for an agreement lodged during the transitional period for an employee to be better off overall, merely that they not be disadvantaged in comparison with the relevant reference instrument. Further that if I was “not so convinced . . . . . that the applicant be given the opportunity to submit an undertaking (s.190) addressing any remaining concerns regarding the agreement not satisfying the NDT”.
[6] The matter was listed for a non-attendance hearing on 15 April 2010 and the file reviewed.
[7] On 21 April 2010, I wrote again to the applicant’s representative noting that subclauses 4.3.4 and 4.3.5 of clause 4.3 Voluntary additional hours, preferred hours & banked hours in the agreement were in a form similar to those considered in the Bupa Care Services, P& A Securities as trustee for the D'Agostino Family Trust [FWA FB 2762] decision of the Full Bench issued on 15 April 2010.
[8] In order to approve the application I stated I would be prepared to consider written undertakings that those clauses not be applied by the parties to the agreement, signed by the employer and an employee representative, and invited a response by Monday 28 April 2010.
[9] The applicant’s representative responded on 28 April 2010 as follows:-
“The option to submit an undertaking with regards excluding the application of the preferred hours clause in the Agreement has been discussed with the employer and the employee representative. I have explained the effect such an undertaking will have on the implementation and application of the terms of the Agreement in the workplace, as well as, the alternative employment arrangements that will apply if such an undertaking is not submitted.
I have been advised that without the flexibility the preferred hours clause allowed the employer and employees, there is no point in proceeding with the application for approval of the Agreement. Therefore, the employer will not be submitting an undertaking to exclude the clause from the Agreement, and the parties are aware that this will result in the Agreement failing the NDT.”
[10] The application is dismissed.
DEPUTY PRESIDENT
Hearing details:
Melbourne
2010
15 April
Final written submissions:
28 April 2010
1 Item 2, Part 1, of Schedule 2.
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