Traffex Pty Ltd
[2010] FWA 7863
•11 OCTOBER 2010
[2010] FWA 7863 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
Traffex Pty Ltd
(AG2010/2446)
TRAFFEX EMPLOYEE COLLECTIVE AGREEMENT
Road transport industry | |
COMMISSIONER CAMBRIDGE | SYDNEY, 11 OCTOBER 2010 |
Application for approval of the Traffex Employee Collective Agreement 2010-2014.
[1] An application has been made for approval of an enterprise agreement known as the Traffex Employee Collective Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Traffex Pty Ltd (the Employer). The Agreement is a single-enterprise greenfields agreement.
[2] The application was lodged at Brisbane on 3 September 2010. The application included a purported Statutory Declaration of Albert Glowacz, made on behalf of the Employer and dated 3 September 2010, (the purported Declaration). The purported Declaration stated that the Agreement was made on “AUGUST OF 2010”. Consequently it has not been possible to determine whether the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.
[3] I have referred to the Declaration of Albert Glowacz as a purported Statutory Declaration because the Declaration document did not include the relevant details or the qualifications of the witness to the purported Declaration.
[4] Part 2-4 of the Act includes various requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these requirements is specified by s.172 of the Act which states as follows:
“172 Making an enterprise agreement
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;
(d) how the agreement will operate.
Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.
Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.
Single-enterprise agreements
(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b) with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and
(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.
Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).
Multi-enterprise agreements
(3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b) with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and
(ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.
Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).
Greenfields agreements
(4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.
Single interest employers
(5) Two or more employers are single interest employers if:
(a) the employers are engaged in a joint venture or common enterprise; or
(b) the employers are related bodies corporate; or
(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.”
[5] As can be seen from subsection 172(4) of the Act, a greenfields agreement is, in respect of a single-enterprise agreement, an enterprise agreement “made as referred to in paragraph (2)(b)”. Paragraph (2)(b) stipulates that an employer may make an enterprise agreement with one or more relevant employee organisations. The dictionary of the Act which can be found at s.12, states that “employee organisation means an organisation of employees” and “organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009”. Consequently, in brief, s. 172 of the Act requires, inter alia, that greenfields agreements may be made between an employer(s) and a registered employee organisation(s).
[6] Further, it is relevant to note the provisions of subsection 182(3) of the Act which is in the following terms:
“Greenfields agreement
(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).”
[7] It is also relevant to note the provisions of subsection 185(2) of the Act which is in the following terms:
“Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.
[8] In addition, it is also relevant to note the provisions of subsection 187(5) of the Act which is in the following terms:
“Requirements relating to greenfields agreements
(5) If the agreement is a greenfields agreement, FWA must be satisfied that:
(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and
(b) it is in the public interest to approve the agreement.
[9] In this matter, the purported Declaration indicated an answer of “No” as stated at point 2.5 and as reproduced in the following terms:
“2.5 Are the employee organisations that will be covered by the agreement, taken as a group, entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement? (s.187(5)(a))
[ ] Yes
[X] No”
[10] Unfortunately the application and the accompanying materials do not mention any registered employee organisation with which the Agreement may have been made. The copy of the Agreement provided with the application was not signed by anyone. Strangely however, on 7 October 2010 the Employer sent an e-mail to FWA which stated as follows:
“We have scanned and attached a signature page as requested. We have also simplified the Wages table for easier comprehension as it was confusing some of our employees.”
[11] The “Signature Page” that was attached to the e-mail of 7 October from the Employer is dated 1st of October 2010, and bears signatures on behalf of the Employer and on behalf of “the employees” with an apparent representative of employees named Damien Barbour. It would seem therefore that perhaps during the passage of time since the application was made the greenfields status of the Agreement may have changed. In any event, the application must be properly considered in the terms that it was made, namely, an application for approval of a single-enterprise greenfields agreement.
[12] The Agreement document did not make mention of any registered employee organisation. The index to the Agreement stipulates a Parties Bound clause at clause 1.2. However, curiously, there is no corresponding provision for that clause in the body of the Agreement document.
[13] It would seem that in order to comply with ss.172, 182, and 187 of the Act, a greenfields agreement would have to apply to and bind a registered employee organisation. Further, in order to comply with s.185 of the Act, an application needs to include a signed copy of the Agreement. In the case of a greenfields agreement such signed copy would necessarily include, inter alia, the signature of a relevant, authorised officer of a registered employee organisation.
[14] Consequently the Agreement does not comply with the requirements of ss.172, 182, 185 and 187 of the Act.
[15] FWA has also received e-mail communication from the Australian Workers’ Union (AWU) requesting that the AWU be provided with an opportunity to be heard in relation to the application. In brief, the communication from the AWU asserts that the Agreement would not pass the better off overall test when considered against the reference instrument of the Building and Construction General On-site Award 2010 [MA000020]. In particular, the AWU asserts that the minimum hourly rates of pay in the Agreement are below the comparable rates in the relevant Modern Award and are “...frozen for 4 years.”
[16] In view of the conclusions made in this Decision, it has become unnecessary for FWA to provide an opportunity for the AWU to be heard in respect to the application in this matter.
[17] Notwithstanding the objections made by the AWU, a cursory review of the Agreement suggests that there would be a plethora of issues that would likely fail the better off overall test as contained in s.193 of the Act. For instance, some examples are; the Agreement refers to the “Workplace Relations Act of 1996” and the “workplace authority”; it stipulates that part-time employees “...will be available to work an average of 38 ordinary hours per week.”; severance payments in respect to redundancy are limited to a maximum of 3 weeks, contrary to the National Employment Standards as contained at s.119 of the Act.
[18] As a further example which perhaps typifies the general tenor of the Agreement, it is interesting to compare the provisions of the Agreement which deal with supply to employees of personal protective equipment (PPE) and uniforms, with similar counterpart provisions from a potentially relevant Modern Award.
[19] The Agreement provisions at clause 2.7 are in the following terms:
“2.7 Uniforms
2.7.1 The employee shall be provided with a minimum of two (2) uniform shirts, one (1) pair of trousers and items of protective personal equipment (PPE) e.g. Traffic Vest, Stop Slow Bat etc. The employee may request additional items of uniform and equipment depending on his or her operational requirements by Traffex.
2.7.2 All employees shall pay a security bond of $250.00 in respect of uniforms and PPE. The bond is refundable upon return of all issued company equipment and in reasonable and acceptable order. The security bond is automatically forfeited if the uniforms and PPE are lost, wilfully damaged or unacceptable due to neglect or not returned within 28 days of termination of employment. The bond is deducted in increments over the first 4 weeks of pay.
2.7.3 Uniforms can be replaced with the old for new policy for aged and worn items.”
[20] In contrast, clause 15 .4 (b) of the Asphalt Industry Award 2010 [MA000054] states:
“(b) Protective clothing, equipment and tools
(i) Where an employee is required to wear protective clothing and equipment such as safety boots, headwear or wet-weather clothing, the employer must reimburse the employee for the cost of purchasing such clothing and equipment. The provisions of this paragraph do not apply where the clothing and equipment is paid for by the employer.
(ii) Where the employer requires an employee to wear any special clothing such as uniforms, the employer must reimburse the employee for the cost of purchasing three sets of uniforms. The provisions of this paragraph do not apply where the clothing and equipment is paid for by the employer.
(iii) Where the protective clothing or uniforms are supplied to the employee without cost, it will remain the property of the employer and will be returned in good condition to the employer (subject to fair wear and tear) on leaving the service of the employer.
(iv) Provided that should an employee leave the service of the employer within six months of commencement and not return all clothing issued, the employee will be liable for 50% of the cost of such clothing.
(v) Where an employer requires an employee to provide and use any tools, the employer must reimburse the employee for the cost of purchasing such equipment. The provisions of this clause will not apply where the employer supplies such items without cost to the employee.”
[21] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s.185 of the Act must be refused. Accordingly the application is dismissed.
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