Venture 40 Pty Ltd T/A Muffin Break Carindale & Kippa-Ring
[2010] FWA 1842
•4 MARCH 2010
[2010] FWA 1842 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/20183)
COMMISSIONER GOOLEY | MELBOURNE, 4 MARCH 2010 |
Application for approval of a single-enterprise agreement by People in SmallBiz.
[1] This application was made under s.185 of the Fair Work Act 2009 (the FW Act) for approval of the Venture 40 Pty Ltd Employee Enterprise Agreement. The application was made by Mr Robert Sharp from People in SmallBiz who was the bargaining representative appointed by the employer.
[2] On 14 January 2010 I wrote to Mr Sharp in relation to this and a number of other agreements and advised that the agreements were in substantially the same terms as those considered by Commissioner Whelan in Bendy Q P/L t/a Jamaica Blue Knox City & Ors 1. In particular they were in substantially the same terms as AG2009/13758 which Commissioner Whelan found did not meet the no disadvantage test.
[3] I further advised that, prior to determining a final view on whether the agreements met the no disadvantage test, he could provide written submissions which addressed the matters raised in paragraphs [35] – [42] of Commission Whelan’s decision with reference to each agreement.
[4] I further stated that for each agreement he had provided declarations signed by persons who purported to be bargaining representatives of members of an employee organisation. I asked him to advise which employee organisation the employees represented.
[5] Mr Sharp did not respond to any correspondence nor did he respond to any phone messages left for him by my Associate.
[6] On 5 February 2010 a Notice of Listing was sent to Mr Sharp and to the employers for each agreement. On 10 February 2010 my chambers was contacted by Ms Dione Mauric, one of the Directors of Venture 40 Pty Ltd, advising that she had not been able to make contact with Mr Sharp. My chambers then forwarded to her a copy of the letter forwarded to Mr Sharp in January 2010. Ms Mauric, and Mr Wolff another Director of Venture 40 Pty Ltd, sought and were granted an adjournment to give them time to consider and to respond to the correspondence. No further written submissions were put by either Ms Mauric and Mr Wolff who advised my chambers that they were happy for me to make a decision on the papers before me.
[7] I issued a decision dismissing the other applications filed by Mr Sharp on 3 March 2010 2.
The Application and Statutory Declaration
[8] In the application signed by Mr Sharp, he advised that the employees acted as their own bargaining representatives.
[9] The Employer Statutory Declaration in this matter was signed by Stephen Wolff and witnessed by Jennifer Hanley. In the section of the Statutory Declaration where the title of the person before whom the statutory declaration is made is required to be given, Ms Hanley has advised that her title is “Centre Secretary” It is inconceivable that a person authorised under the Statutory Declaration Act 1959 to witness a Statutory Declaration would complete the form in this manner.
[10] I am concerned that Mr Sharp has provided Fair Work Australia with a Statutory Declaration in support of the applications for approval which was not properly witnessed and is misleading.
[11] Commissioner McKenna 3 had similar Statutory Declarations in a number of other approval applications lodged by Mr Sharp. I endorse Commissioner McKenna’s comments at paragraph [11] where she found that it was likely that employees were simply asked, or instructed, by their employer to sign the Form F18 and that they did so without understanding the nature of the form they were signing.
[12] I further note that like the Employer Statutory Declarations before Commissioner McKenna, the Employer Statutory Declarations in these matters are formulaic in their responses. All contain the same answers to questions 2.3, 2.4 and 2.5 as were provided in the applications before Commissioner McKenna. As Commissioner McKenna noted, despite the advice that each employee was their own bargaining representative the Statutory Declarations advised the employees and their bargaining representatives were provided with a copy of the Agreement and were notified of the time place and voting method. In answer to question 2.5 the common response was:
“All employees and their bargaining agent(s) were provided with a letter indicating that if under legal age that they were required to provide information to their legal guardian. Likewise, if from a non-English speaking background and would like further explanation,further [sic] assistance would be provided.”
[13] The answer in each Statutory Declaration replicated the typographical error identified by Commissioner McKenna. All this suggests that the Statutory Declarations are a template provided by Mr Sharp to the employers to sign and do not reflect the considered answers by the deponents to each question. Further, I do not consider the response to question 2.5 in the employer declaration form satisfies the requirements in s.180(4) of the FW Act that the employer take all reasonable steps to ensure that the terms of the agreement and the effect of those terms are explained to the employees. The response to question 2.5 does not provide any evidence of any explanation being provided to employees.
[14] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[15] The employer cites the National Fast Food Retail Award 2000 4 (the Fast Food Award) as the relevant award for the purpose of the no disadvantage test. I have used this award when assessing the Agreement.
[16] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[17] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[18] In addition the Agreement provides for other lesser entitlements than provided in the Fast Food Award. Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
Hours of work
[19] The Agreement provides for the averaging of 38 hours of work over a 52 week period with a minimum call of four hours, subject to availability and preferred hours of work requested by the employees. The maximum number of hours on any one day is ten and the employees are not rostered for more than six consecutive days without one day off without mutual agreement. Employees work a maximum of ten days per fortnight unless mutually agreed otherwise.
[20] In contrast the Fast Food Award provides for the working of a 38 hour week which at most can be averaged over a four week period. The maximum number of hours in one day is eleven hours between 6.00 a.m. and midnight. The Fast Food Award provides that the number of days worked per week is five except that if six are worked in one week only four may be worked the next week 5.
[21] Part-time employees under the Fast Food Award are entitled to a regular pattern of work and that agreed pattern can be varied by agreement and any hours worked in excess of the agreed hours of work are overtime 6. By contrast clause 12 of the Agreement only provides for overtime after a part-time employee works 38 hours and then overtime is at single time in contrast to the Fast Food Award where overtime is paid at either time and a half or double time7.
Preferred Hours Arrangements
[22] The Agreement provides for the payment of a lower rate of pay for employees who elect to work preferred hours to suit their personal circumstances. In Hao Yun Pty Ltd Employee Enterprise Agreement 8 Commissioner McKenna considered an identical preferred hours clause to that contained in this Agreement. Commissioner McKenna referred to the decisions of Commissioner Whelan and Commissioner Smith which dealt with preferred hours arrangements:
“In Bendy Q P/L t/s Jamaica Blue Knox City & Ors [2009] FWA 1869, Whelan C recently considered a number of applications for the approval of enterprise agreements which appear, from the decision, to follow a similar, but not identical, template to the applications before me. Whelan C said this in relation to the preferred hours arrangements:
[41] It is not, in my view, appropriate nor does it pass the no disadvantage test, to include in an agreement a general provision which removes penalty provisions from the employees’ rate of pay on the basis that they have nominated certain hours during which they are available to work. If the employer requires work to be performed during those hours and the employee is able to perform that work then that is a normal incident of employment and not a special arrangement which might be covered by either section 65 or the type of arrangements covered by section 203. It is notable that if employees were to be engaged under these ‘preferred hours’ arrangements they would be paid less than if the relevant award applied.
I note also that in Bupa Care Services, ANF and HSU Enterprise Agreement 2009 [2010] FWA 16 Smith C recently considered a preferred hours arrangement, albeit the clause differed from the provisions of these agreements. In declining to approve the agreement, Smith C noted:
[17] Against this background, it can be seen that this proposed clause represents a cost saving rather than a benefit. It would be difficult to suggest that an employee would see the benefit in being paid less than that which would ordinarily apply. In short, it is the gift of employment that the employer is offering provided it is at a discounted rate from the safety net. This is a concept which, in my view, has far reaching implications for the operation of the safety net of wages and conditions.” 9
[23] Commissioner McKenna stated that she agreed“with the approach to preferred hours adopted in these quotes, and generally, in Bendy Q P/L t/s Jamaica Blue Knox City & Ors and Bupa Care Services, ANF and HSU Enterprise Agreement 2009. To the extent three of the agreements contain preferred hours arrangements, they, self evidently, fail the no disadvantage test - given the displacement of entitlement to higher rates that otherwise would attach to the performance of work during those hours.” 10
[24] I agree with the approach to preferred hours adopted in the decisions of Commissioners Whelan, Smith and McKenna. Whilst in this case, the preferred hours rate is in excess of the minimum rate of pay in the Fast Food Award, the amount paid would not compensate an employee who predominately works on weekends for the loss of penalties paid under the Fast Food Award and hence I find that the Agreement fails the no disadvantage test due to inclusion of such a provision.
Uniforms
[25] Clause 16 of the Agreement provides that an employee may be required to pay a deposit for uniforms. No such provision exists in the Fast Food Award. Further the Fast Food Award provides that where an employee is required to launder their uniform they are paid a laundry allowance of $4.53 per garment per week 11.
Annual Leave
[26] Clause 18(d) of the Agreement permits the cashing in of up to two week’s annual leave. This is inconsistent with s.93 of the FW Act.
Parental Leave and Compassionate leave for casual employees
[27] Clause 21 of the Agreement which provides for parental leave is not consistent with the National Employment Standards. Further the Agreement does not provide for unpaid compassionate leave for casual employees. Neither of these issues affects an assessment of the no disadvantage test as the National Employment Standards will override a lesser entitlement in an agreement.
Termination of employment
[28] Clause 25(g) of the Agreement provides the employer with the right to terminate the employee’s employment without notice in circumstances that may be contrary to s.117 and s.123 of the FW Act and may be an unlawful term as defined in s.194(d) of the FW Act.
[29] Further clause 15(b) of the Agreement provides that at any time during the probationary period the Company can terminate employment by giving one day’s notice. This provision is not consistent with s.117 of the FW Act which provides that the minimum notice period for an employee with less than one year’s service is one week.
Accident Make Up Pay
[30] The Agreement does not provide for Accident Make Up Pay which is provided for in the Award 12.
Flexibility Clause
[31] Clause 4 of the Agreement provides for a flexibility clause. It does not meet the requirements of sections 203(2)(b) and 203(4) of the FW Act. It does not provide that the flexibility agreement be about permitted matters and not unlawful matters. It further provides that the employee must not be disadvantaged while the FW Act requires that the employee must be “better off overall”.
Dispute Resolution
[32] Clause 6 of the Agreement does not expressly provide that the dispute resolution procedure will deal with disputes in relation to the National Employment Standards. It does not provide that an employee may be represented at any stage of the procedure.
Conclusion
[33] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[34] For the reasons set out above the Agreement does not pass the no disadvantage test and the application for approval is dismissed.
COMMISSIONER
Hearing details:
2010.
Melbourne:
February 11.
1 [2009] FWA 1869.
2 [2010] FWA 1769.
3 [2010] FWA 383.
4 AP806313.
5 Ibid at clause 23.1.
6 Ibid at clause 11.1.
7 Ibid at clause 25.
8 [2010] FWA 383.
9 Ibid at [17] and [18].
10 Ibid at [19].
11 AP806313, National Fast Food Retail Award 2000 at clause 17.1.7.
12 Ibid at clause 36.
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