Waeger Constructions Pty Ltd

[2021] FWC 4841

[2021] FWC 4841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Waeger Constructions Pty Ltd
(AG2021/54)

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 6 AUGUST 2021

Application for approval of a variation to the Waeger Constructions Pty Ltd Enterprise Agreement

[1] Application has been made by Waeger Constructions Pty Ltd for approval of a variation to the Waeger Constructions Pty Ltd Enterprise Agreement (the Agreement). The application seeks to vary clauses relating to timesheets, private vehicle use, overnight stay allowance, hot weather, personal leave, evidence requirements for single day absences, clothing, the nominal expiry date, and rates of pay for the extended agreement term. The application also seeks to incorporate undertakings given when the Agreement was approved 1 into the body of the Agreement.

[2] The application was filed out of time and was not accompanied by a copy of the signed variation 2 and other documents referred to in the Form F23A declaration. Attempts to elicit further information from the company about its application on 17 February 2021, 26 February 2021, 10 March 2021 and 15 March 2021 went unmet until 19 March 2021, when three additional documents were filed in the Commission.

[3] The matter was listed for mention on 25 March 2021. On 31 March 2021, the company filed an unsigned variation letter, a letter explaining the delay in lodging the application, and an undertaking in relation to the proposed variation to the nominal expiry date. The Commission then completed a preliminary assessment of the application and on 13 April 2021, sent correspondence to the company seeking further information about the proposed variation. A response was received on 20 April 2021.

[4] The matter was listed for hearing on 28 April 2021. In the course of the hearing, the Applicant undertook to provide further information to the Commission. It did so on 12 May 2021 and a further hearing was held on 17 June 2021. At the hearing, the company undertook to file further additional information in support of its application. Some of this additional information was finally lodged on 6 July 2021 and a further undertaking given on 16 July 2021. As the history of the matter shows, ample opportunity has been given to the company to furnish the information required for this application to be approved.

Procedural matters

Application made late

[5] The agreement variation was purportedly made on 14 December 2020. The application was then made to the Commission on 14 January 2021. The reason given for delay is that there were two consecutive leave periods falling over the Christmas period – firstly for the employee bargaining representative, and secondly for the Managing Director as well as the Administration Manager. The application was made once work resumed in January 2021.

Form and content requirements

[6] An application for variation of an enterprise agreement must be accompanied by a signed variation. 3 Regulation 2.9A Fair Work Regulations 2009 outlines the requirements for signing the variation. No signed variation was filed with the application. A signed variation was filed on 12 May 2021. The variation does not detail all of the proposed variations to the agreement – specifically, it omits changes to the name of RDO calendar to be used in clause 4.1.1, changes to arrangements for the provision of work boots (clause 6.2.1(a)) and tools (clause 6.2.5) and rate of pay increases for 2021 to 2023. A change in clause 2.2.1(d) about when timesheets are to be submitted is different in the signed variation (9.00am) to the change reflected in documents used to explain the changes to employees (10.00am). The nominal expiry date is more than four years after the day the Agreement was approved. An undertaking has been given in relation to the nominal expiry date.

Genuine Agreement

Provision of variation to employees

[7] A copy of the final written text of the variation appears to have been provided to employees on the day the variation was made. While various proposed drafts of the variation were available to employees in the period during which the variation was negotiated, the actual proposed variation was not available for employees to review or consider until the day of the vote. This means that employees did not have access to this information during the access period for the variation, which was 7 “clear” days before the commencement of the vote.

Notification of the vote

[8] Employees do not appear to have been notified of the time, place, and method of the vote prior to the access period in a manner that would be sufficient to meet the requirements of the Act. Employees were told during toolbox talks about an impending vote. However, the time and place of the vote was not advised to employees until the day of the vote, during a pre-start meeting. Employees were told they would be asked to vote “there and then”. Voting was conducted by show of hands.

Explanation of the terms of the variation and their effect

[9] The company used tracked changes versions of the current enterprise agreement, containing the proposed variations, to explain the changes to employees. This was done by the employee representative, Lee Farmer, with additional information provided by the Managing Director, Michael Waeger. Mr Farmer was unable to locate a copy of the version he used to explain the final changes to employees. A number of different versions of a document containing tracked changes have been provided to the Commission, but none appear to be complete reflection of the final proposed changes.

National Employment Standards (NES)

[10] Some clauses of the proposed variation are inconsistent with the NES. Clauses 5.3.7 and 5.3.8 do not provide for carer’s leave in relation to members of an employee’s household who are not immediate family members, and clause 5.2.1 excludes additional days that are declared or prescribed by the relevant state jurisdiction from the list public holidays for the purposes of the Agreement.

Better Off Overall Test

[11] The agreement as proposed to be varied has been assessed against the Building and Construction General On-site Award 2020. Agreement rates of pay do not leave employees better off overall in particular circumstances where an entitlement to fares and travel pattern allowance arises under the award. The company has given an undertaking to resolve my concern in relation to the payment of fares and travel allowance.

[12] Entry level rates in the proposed variation are lower than the rates that apply under the Agreement. The company made reasonable efforts to resolve this error through the signed variation dated 12 May 2021, but it is a matter that can only be resolved by undertaking.

Consideration

[13] Because it was late, and because it was not accompanied by the relevant prescribed documents, the application was not made in accordance with the Act and the Regulations. Had I been able to be satisfied that the other requirements for approval of the variation were met, I would have exercised my discretion to waive non-compliance with the procedural rules in these respects.

[14] However, I am not satisfied that the proposed variation has been genuinely agreed to by the employees who will be covered by the Agreement as varied. It is clear that Waeger engaged in good faith with its employees in relation to the variation over a period of approximately six months and that a large majority of employees voted by show of hands to approve the variation (although the precise number of employees is not known). Regrettably, the process adopted to make the variation did not follow a number of the necessary procedural steps.

[15] As a result, I am not satisfied that the company took all reasonable steps to:

1. Ensure that employees were given, or had access to, the written text of the proposed variation during or throughout the access period. The final version of the proposed variation was not provided to employees until the day of the vote;

2. Ensure that the terms of the proposed variation and their effects were adequately explained to employees; or

3. Notify employees of the time, place and method of the vote by the start of the access period for the variation 4.

[16] Taken together, these were not minor procedural errors. They are likely to have meant that employees were not fully aware of what they voted for on 14 December 2020. I am not satisfied that the variation was genuinely agreed for the purposes of s.188(2)(b) of the Act and the concern has not been adequately addressed by the company since that time, either by way of further submissions, evidence or undertaking.

[17] The proposed variation would exclude the NES in part in the way described above. Further, entry level rates of pay in the version of the proposed variation voted upon by employees mean that entry level employees would not be better off overall under the agreement as proposed to be varied.

[18] The consequence of these findings is that the variation cannot be approved.

[19] The application is dismissed.

COMMISSIONER

Appearances:

L Lawrence from the applicant.

Hearing details:

2021.
Melbourne (video hearing):
April 28, June 17.

Printed by authority of the Commonwealth Government Printer

<AE501629  PR732583>

 1   See [2019] FWCA 679.

 2   See Fair Work Act 2009, s.210(2)(a).

 3   Fair Work Act 2009, s.210(2)(a).

 4   See Fair Work Act 2009 (Cth) sub-ss. 180(3) as modified by 211(3)(a).