Thorn Airfield Lighting Pty Ltd
[2012] FWA 9216
•26 OCTOBER 2012
[2012] FWA 9216 |
|
STATEMENT |
Fair Work Act 2009
s.185—Enterprise agreement
Thorn Airfield Lighting Pty Ltd
(AG2012/8515)
Electrical contracting industry | |
COMMISSIONER RYAN | MELBOURNE, 26 OCTOBER 2012 |
Application for approval of the Thorn Airfield Lighting Pty Ltd Enterprise Agreement 2012.
[1] An application has been made for approval of an enterprise agreement known as the Thorn Airfield Lighting Pty Ltd Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) on 24 October 2012.
[2] The application comprised Form F16, Form F17 and a copy of the signed enterprise agreement. The applicant, Thorn Airfield Lighting P/L, part of the Swedish based Safegate Group, identified in the Form F17 that 5 casual employees are to be covered by the agreement.
[3] The Application Form F16 identified that there was one bargaining representative of employees appointed as a bargaining representative in accordance with s.176(1)(c) and that a copy of the instrument of appointment was given to the employer in accordance with s.178(2)(a).
[4] The appointment of a bargaining representative presupposes that the employer gave a Notice of Employee Representational Rights to the relevant employees. The Form F17 declares that the employer did do so, but, contrary to the requirement in the Form F17, the employer did not attach a copy of the Notice of Employee Representational Rights to the Form F17.
[5] I also note that the employee identified on the Form F16 as being the only appointed bargaining representative of employees signed the agreement in his capacity as “Elected Employee Bargaining Representative at Thorn Airfield Lighting Pty Ltd”.
[6] Arrangements which permit or require employees to elect a bargaining representative for the purposes of bargaining for an enterprise agreement may operate to prevent employees from appointing a bargaining representative of their choice once the majority of a group of employees elect a bargaining representative. Also the presence of an elected bargaining representative may operate to prevent an employee from exercising a right to withdraw authority from the elected bargaining representative and appointing a new bargaining representative.
[7] I have concerns as to whether the employees who are to be covered by this agreement had a proper opportunity to exercise their rights under s.176. Such concerns cannot be addressed through the information contained in the Form F16 or F17. I will list the matter for hearing so that I can examine the deponent of the Form F17 and examine the employee who signed the agreement and to make such other inquiries as will provide me with the material required to decide whether compliance with the Act has occurred.
[8] I have considered the contents of the agreement and my initial view is that the agreement will not pass the Better Off Overall Test (BOOT) and that one clause does not meet the requirements of the Act.
[9] The contents of the agreement are essentially a copy of the Electrical, Electronic and Communications Contracting Award 2010 (the Award) with four specific changes.
[10] Firstly, the wage structure in the agreement has the same rates of pay as the Award for Electrical worker grades 1 to 5 in their first year of employment but the agreement then provides for incremental pay increases for the second, third and fourth year of service which provide rates of pay in excess of the Award.
[11] Secondly, clause 9.3 provides for a casual loading in the Agreement of 23% as against 25% in the Award.
[12] Thirdly, the Agreement contains clause 22 - “Mobile telephones” which has no counterpart in the Award and which appears to prima facie operate to put the employee in a less beneficial position than if they were employed under the Award.
[13] Fourthly, the Agreement contains clause 23 - “Motor vehicles” which has no counterpart in the Award and which appears to prima facie operate to put the employee in a less beneficial position than if they were employed under the award.
[14] Finally I note that clause 7 - “Consultation regarding major workplace change” does not comply with s.205(1)(b).
[15] The issue with clause 7 can easily be remedied by either an undertaking offered under s.190 or by the employer conceding that clause 7 does not meet the requirements of s.205 in which case the model consultation term will become a term of the agreement.
[16] The concern I have in relation to clause 9.3 having a lower casual loading than the Award is that the Agreement clearly operates to the disadvantage of casual employees in their first year of service. I note that the employer is only currently employing 5 casual employees. The very nature of genuine casual employment is that it may not extend beyond a year thus making the incremental wage increases in the agreement illusory.
[17] Each of the concerns I have in relation to clauses 9.3, 22 and 23 could be resolved through appropriate undertakings offered under s.190 which provides as follows:
190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWA must seek views of bargaining representatives
(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.
[18] However the offering and acceptance of undertakings to resolve those concerns does not mean that the Agreement will pass the BOOT. Improving the casual loading to 25% and effectively removing clauses 22 and 23 (or at the very least the concerning parts of those clauses) would appear to do no more that put the agreement on the same level as the Award for all employees in their first year of service. For all such employees the Agreement would not pass the BOOT.
[19] To pass the BOOT for all employees in their first year of service it would appear that a specific change would need to be made to the Agreement which provided a real and measurable benefit to employees. If the employer was to offer an undertaking such as would be required to pass the BOOT it appears that such a change may fall foul of s.190(3)(b) on the basis that such a change may be a substantial change to the Agreement.
[20] The employer and any employee representatives will have an opportunity of addressing all of these issues at a hearing. A Notice of Listing has been issued separately to this Statement.
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