The Trustee For The Favco Trust T/A Favco Queensland Pty Ltd
[2023] FWC 3165
•30 NOVEMBER 2023
| [2023] FWC 3165 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
The Trustee For The Favco Trust T/A Favco Queensland Pty Ltd
(AG2023/4261)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 30 NOVEMBER 2023 |
Application for approval of the Favco Queensland Pty Ltd Enterprise Agreement 2023 - application dismissed
An application has been made for approval of an enterprise agreement known as the Favco Queensland Pty Ltd Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee for the FAVCO TRUST T/A Favco Queensland Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
On 23 November 2022 my chambers wrote to the Applicant raising a number of concerns in respect of the Agreement. These were:
a. That the agreement provided for an expiry date that could extend beyond 4 years in accordance with s.186(5) of the Act;
b. Raising a number of issues that were inconsistent with the National Employment Standards (NES) but noting that the Agreement contained an NES precedence clause and seeking submissions on these issues;
c. Issues with respect to whether the Agreement passed the better off overall test (BOOT) in respect of the span of hours, minimum engagement for casual employees, overtime triggers, 40 hour week, part time employee hours of work, loaded rates/alternative individual agreements, accident pay and work during meal breaks.
On 27 November 2023, my chambers received a response from the Applicant’s representative addressing each of the issues raised. After considering the responses, on 28 November my chambers wrote back seeking further information to address concerns related to these issues.
On 29 November 2023, my chambers received a response from the Applicant’s representative addressing each of the issues raised.
In the Application, the Applicant’s representative provided evidence that employees were provided with the following correspondence on 1 November 2023:
“From: Katrina Roberts
Sent: Wednesday, November 1, 2023 11:02 AM
To: Shane Clarke ; Mark Clarke
Subject: Favco Qld Enterprise Agreement 2023 - Please review.
Good Morning,
As you would be aware from the original letter provided on 31st May 2023, the current Collective Agreement will ‘sunset’ on 6 December 2023 and Favco Qld Pty Ltd would be entering into a new Enterprise Agreement.
You were also provided with a Notice of Representational Rights (NERR) regarding the appointment of an Employee Bargaining Representative. Catherine Hodgson, Kerrie Stewart, Jason Williamson, and Anthony Ziebarth have been appointed and agreed to be your bargaining representative.
The business has provided a copy of the proposed agreement on 25th October and had an initial meeting with Catherine, Kerrie, Jason and Anthony to discuss the Agreement and variations to any conditions contained in the old agreement versus the new agreement on 30th October 2023.
The next step of this process is to provide all staff covered by the Agreement with a copy of the proposed Agreement, which you will find attached. If you require a printed copy, please let me know.
You will be provided with 7 days to review this document and direct any queries/questions to either your Bargaining Representative or Myself. After this time, we will again meet with Catherine, Kerrie, Jason, and Anthony to determine if all staff are satisfied with the document, that any queries were answered and staff are ready to proceed to vote, at which time we will provide details of the intended voting date and process for the secret Ballot.
If you have any questions or concerns, please let me know.
Regards
Kind regards
Katrina Roberts
Administration Manager”
The Applicant’s representative also provided evidence that employees were provided with the following correspondence on 8 November 2023:
“Hello everyone
We provided all staff with a copy of the Agreement to review on 1st November 2023 (as per below) and an opportunity to raise any questions with either your Bargaining Representative or myself.
We have again met with the Bargaining Representative, Catherine, Kerrie, Jason and Anthony, today to ensure all staff are ready to move forward to voting.
This vote will occur by secret ballot from 4am Thursday, 9th November 2023 & will be open until COB Friday, 10th November 2023. You will be required to attend the offices of Catherine & Kerrie, you will need to sign your name and receive a ballot paper. Once you have recorded your vote, please place in the ballot box that will be in Kerrie & Catherine’s office.
If you are away or sick during this time, please contact me on 040XXXX32 to arrange another alternative.
Kind regards
Katrina Roberts
Administration Manager”
The Form F17A declaration provided by the Applicant indicates at question 26 that the vote commenced on 9 November 2023 and ended on 10 November 2023.
In order to approve an enterprise agreement, the Commission must take into account the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (SOP) made under section 188B in determining whether it is satisfied that an enterprise Agreement has been genuinely agree to by the employees who will be covered by it. Paragraph 16 of the SOP requires that:
“16. Employees should be informed of the time, place and method for the vote:
(a)at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or
(b)by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.”
It is clear from the correspondence provided by the Applicant’s representative, that relevant employees were provided a draft copy of the Agreement for feedback and questions on 1 November 2023 and were subsequently informed of the time, place and method of the vote on 8 November 2023, The vote was conducted on 9-10 November 2023. Therefore, employees were only provided 1 days notice instead of the 7 days required.
The Applicant advised the Commission that there were not employee organisations that are bargaining representatives at Question 4 of the Form F16 Application. On this basis Paragraph 16 (b) of the SOP cannot apply.
It is not necessary for me to consider the other concerns raised nor their responses because the application’s non-compliance with s.188B results in the Agreement being incapable of approval.
The application is dismissed.
Printed by authority of the Commonwealth Government Printer
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