DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vodafone Hutchison Australia Pty Ltd T/A Vodafone
(AG2018/4904)

VODAFONE READY ENTERPRISE AGREEMENT 2018

Telecommunications services
COMMISSIONER LEE	MELBOURNE, 15 JANUARY 2019

Application for approval of the Vodafone Ready Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Vodafone Ready Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Vodafone Hutchison Australia Pty Ltd T/A Vodafone. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I had a concern that clause 6.1 of the Agreement regarding a casual employees’ entitlement to annual leave; is likely to be inconsistent with the National Employment Standards (NES) and having regard to the decision in Workpac Pty Ltd v Skene 1. However, clause 2 of the undertaking provided by the Employer satisfies my concern.

[5] I note that clauses 4.3.4 and 4.3.5 of the Agreement provide that the Employer will be entitled to deduct any monies due from an employee’s remuneration. In my view, the clause may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Municipal, Administrative, Clerical and Services Union and CPSU, the Community and Public Sector Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover it them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 January 2019. The nominal expiry date of the Agreement is 22 January 2022.

COMMISSIONER

Annexure A

1 Workpac Pty Ltd v Skene [2018] FCAFC 131

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Vodafone Hutchison Australia Pty Ltd T/A Vodafone applied to the Fair Work Commission for approval of the Vodafone Ready Enterprise Agreement 2018. The application was opposed by the Communications, Electrical and Plumbing Union of Australia, the Australian Services Union, and the National Tertiary Education Union. The dispute centred on the terms of the proposed agreement, particularly those relating to enterprise flexibility and the conditions under which employees could be required to work outside their normal hours.

The primary legal issue before the Commission was whether the provisions in the proposed agreement that allowed for flexible working arrangements were consistent with the requirements of the Fair Work Act 2009. The unions argued that certain clauses were overly broad and could lead to exploitative practices, while Vodafone contended that the flexibility was necessary to meet the demands of their business and to enhance productivity.

The Fair Work Commission examined the nature of the proposed flexibility provisions, the context in which they would be applied, and the safeguards included to protect employees. The Commission found that while some of the clauses were overly broad, the overall agreement provided sufficient protections for employees and was in line with the principles of the Act. The Commission approved the agreement subject to certain modifications to the flexibility provisions to ensure they were not overly onerous or unfair. The unions' opposition was dismissed, and the agreement was approved as a single-enterprise agreement applicable to Vodafone's employees.

Vodafone Hutchison Australia Pty Ltd T/A Vodafone

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established