Yaralla Sports Club

[2014] FWC 3809

[2014] FWC 3809

The decision with the reference [2014] FWCA 2123, issued on 6 June 2014, is replaced with the attached document with code [2014] FWC 3809.

Nate Burke

Associate to Commissioner Spencer

Dated 10 June 2014

[2014] FWC 3809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Yaralla Sports Club
(AG2014/368)

COMMISSIONER SPENCER BRISBANE, 6 JUNE 2014

Application for variation of the Yaralla Sports Club Inc Enterprise Agreement 2012 - employee organisation objection to variation.

[1] An application has been made for approval of a variation of the Yaralla Sports Club Inc Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Yaralla Sports Club Inc (the Applicant). The Applicant was represented by the Registered and Licensed Clubs Association of Queensland, Union of Employers, trading as Clubs Queensland (Clubs Queensland).

[2] The Agreement, being a single-enterprise agreement, was approved by the Fair Work Australia (as it then was) by decision of 19 July 2012. 1 The nominal expiry date of the Agreement is 14 May 2015.2 The Australian Workers’ Union (the AWU/Union) is a party to the Agreement.

[3] The Applicant now applies to vary the Agreement pursuant to s.210 of the Act. The application seeks to vary the Agreement in a number of respects. The proposed variation is Annexure 1 to this decision. The AWU objects to the variation on a number of grounds.

[4] The proposed variation would amend the wage rates contained in Clause 6 of the Agreement; insert the Model Consultation Term and the Model Flexibility Term as terms of the Agreement; insert a new wage schedule as Appendix A; and correct specific typographical and numerical discrepancies.

Relevant legislation

[5] The application has been made pursuant to s.210 of the Act which provides:

210 Application for the FWC’s approval of a variation of an enterprise agreement

Application for approval

(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the variation; and

(b) a copy of the agreement as proposed to be varied; and

(c) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the variation is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

Signature requirements

(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.

[6] The Applicant, being the employer covered by the Agreement, is a person entitled to apply to the Commission for approval of the variation, pursuant to s.210(1) of the Act. The application was accompanied by the material required by s.210(2) of the Act. The application was made on 21 February 2014. The Form F23A Employer’s Declaration in Support of Approval of Variation of Enterprise Agreement declared that the variation was made on 17 February 2014. I am satisfied that the application was made within the period prescribed by s.210(3)(a) of the Act.

[7] The Act prescribes those matters which the Commission must consider in approving a variation. Section 211 of the Act provides:

211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).

Modification of approval requirements

(2) For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:

(a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and

(b) comply with subsection (5); and

(c) disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).

(3) The following provisions:

(a) section 180 (which deals with pre-approval steps);

(b) subsection 186(2) (which deals with the FWC’s approval of enterprise agreements);

(c) section 188 (which deals with genuine agreement);

have effect as if:

(d) references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and

(e) references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and

(f) references in section 180 to subsection 181(1) were references to subsection 208(1); and

(g) the words “if the agreement is not a greenfields
agreement—” in paragraph 186(2)(a) were omitted; and

(h) paragraph 186(2)(b) were omitted; and

(ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and

(hb) subparagraph 188(a)(ii) were omitted; and

(j) the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.

(4) Section 193 (which deals with passing the better off overall test) has effect as if:

(a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and

(b) subsection (3) were omitted; and

(c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and

(d) the reference in subsection (6) to section 185 were a reference to section 210.

(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

[8] The requirement of s.211(1)(b) is satisfied. There is no proposed variation to the nominal expiry date of the Agreement. The nominal expiry date of the Agreement remains 14 May 2015 being a date which is not more than 4 years from the day on which the Agreement was approved.

[9] I will now turn to consider the objection raised by the AWU.

AWU Objection

[10] Prior to considering the application, the Commission sought, by email of 25 February 2014, that the AWU consider filing a Form F23 Employee Organisation Declaration in relation to the application. By return email on 26 February 2014 the AWU confirmed that a Form F23 would not be completed, on the basis that the AWU did not support the application. The AWU expanded upon this position as follows:

“The brief grounds of our objection are:

The variation is seeking a substantial reduction in the wage rates over a period of time for existing permanent staff but will have an immediate effect on casual staff;

The timing of the ballot was such that it would minimise the voter turnout, especially in the largest demographic to be affected, so the result of the vote is not a true indication of the opinions of the affected staff;

The suggested casual conversion goes virtually no way towards being an improvement as the 24 month service requirement rules out a lot of staff; and

Some of the factors given by the Applicant as the reason for the variation were factors known during the negotiations of the Agreement.”

[11] Following receipt of this correspondence the Commission issued Directions to both parties.

[12] The AWU clarified the nature of its objection and stated that it did not object to those variations contained in items 1, 3, 4 and 5 of the proposed variation, on the basis that these amendments were “administrative changes”. 3 However, the AWU pressed an objection to item 2 of the proposed variation (amendment to clause 6 - Wages, Allowances and Employer Subsidies), on the basis that the proposed reduction would mean that the Agreement no longer passed the Better Off Overall Test (the BOOT). In relation to the final item of the proposed variation, item 6, the AWU did not “totally” object to the proposal with an amendment that the reference to when the wages rates are current, be amended to the appropriate date.

[13] The AWU submitted that an employer, covered by an enterprise agreement, may request affected employees for a proposed variation approve the proposed variation by vote. In this regard, the AWU referred to s.208 of the Act which provides:

208 Employers may request employees to approve a proposed variation of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it.

(2) Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method.

[14] A proposed variation is “made” if, after having been requested to approve a proposed variation, employees, by way of a majority of affected employees who cast a valid vote, approve the variation. 4

Signing of proposed variation

[15] The AWU objected to the application on the basis that not all procedural steps had been followed by the Applicant prior to the filing of the application. The basis of this objection was that the AWU has not signed the variation.

[16] The basis of the AWU’s argument, as I apprehend it, is that the variation was required to be signed prior to the filing of the application. The AWU has not submitted that the individual employee who did eventually sign the variation was not an “employee representative”.

Genuine agreement

[17] The AWU’s primary submission was that, while it appears the requirements of the Act have been met, there are “other reasonable grounds” for believing that the variation had not been genuinely agreed to.

[18] Section 188 states:

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[19] Section 188 is varied, by operation of s.211(3)(hb), by removing s.188(a)(ii), and varying references to “agreement” to “variation”.

[20] The AWU conceded that those matters in s.188(a) and (b) have been complied with. The AWU submitted however that the Commission must consider s.188(c) in relation to this proposed variation.

[21] The AWU set out the “other reasonable grounds” as follows:

“The ballot was conducted at 8:45am on Monday 17 February 2014, a time that staff numbers are quite possibly at their lowest owing to the nature of the business;

Only 35 of a possible 106, or 33%, of eligible staff voted on the proposed variation;

The timing of the ballot was when the majority of affected employees, that being casual employees, were not rostered on and were unlikely to attend;

Approximately 60% of the affected employees are casual and will be affected immediately;

The AWU was deliberately misled by the Applicant as to the time of the ballot in order to exclude our involvement and protect the interests of our members and employees of the Applicant;” 5

[22] In support of this submission, the AWU relied upon a statutory declaration of Mr Zac Beers, Organiser in the Central District of the AWU. Mr Beers was involved in the negotiation of the Agreement.

[23] Mr Beers stated that the Agreement, the subject of this decision, was negotiated after an unsuccessful attempt to terminate the previous Agreement. The Commission’s records reflect that an application was made by the Applicant to terminate the previous Agreement but that that application was withdrawn and was not determined by Fair Work Australia (as it then was).

[24] Mr Beers stated that, after a period of negotiation, the AWU did not agree with the proposal put by the Applicant in relation to the proposed agreement but adopted the position that the proposed agreement be put to a vote. Consequently that vote was held and the Agreement was approved by a majority of employees who cast a valid vote. Mr Beers stated that following these negotiations there was no further communication with the Applicant until 3 December 2013 when the Applicant approached Mr Beers to request a meeting. Mr Beers’ evidence is that a meeting was held in which he was advised that the Applicant was not currently performing as expected and was running at a loss. As a result, it was put to Mr Beers that the Applicant wished to seek a variation to the Agreement to “reduce labour costs”. The result of this meeting was that Mr Beers stated he would need to see any proposed variation before providing the AWU’s position.

[25] Mr Beers was subsequently provided with a copy of the proposed variation and agreed to hold joint meetings with the workforce in January 2014. Mr Beers stated that following this, he received advice from the Applicant, on 22 January 2014, that the Applicant had held a number of meetings with employees and was intending to hold a ballot of the variation. Mr Beers stated that he, and the Union, were not invited to attend any of these meetings. Mr Beers’ evidence is that the AWU was advised that the proposed ballot would be held at 8:45am on Tuesday, 18 February 2014.

[26] Attached to Mr Beers declaration was an email, dated 22 January 2014, from Mr Will Schroeder, Chief Executive Officer, that stated:

“It is my intention to provide all staff with a copy of the proposed amendment to agreement via mail next week advising them of the Ballot date and location of the ballot.

The date will be Tuesday, 18 February 2014 at 8.45am at Yaralla Sports Club.

All staff will be provided with the opportunity to attend should it fall within their normal rostered hours.” 6

[27] At 8:33am on Monday, 17 February 2014, Mr Beers emailed Mr Schroeder, to clarify the AWU’s position in relation to the changes. 7 This email clearly set out the AWU position that the proposed variation was not supported.

[28] A further email was sent, by Mr Beers to Mr Schroeder, at 8:10am on Tuesday, 18 February 2014. 8 This email sought to clarify the nature of the vote.

[29] Mr Schroeder responded to Mr Beers at 11:36am on that same day and advised that the ballot had already occurred. This email stated:

“All staff were provided with notice of ballot in writing on the 28th January 2014 and provided a copy of the proposed changes to amendment.

The Ballot was scheduled for Monday 17 February at 8.45am to facilitate maximum attendance and staff that were rostered on were relieved of their duties to enable them to attend.

Two members of the eligible voting staff were appointed scrutineers with 35 in attendance.

Approx.. (sic) 80% voted in favour of the proposed changes and as a result I am now obligated to file the matter with the Commissioner for consideration.

It has only come to light now that we failed to provide you with the change in date and we apologise for any inconvenience this may have caused.”

Better off overall test [BOOT]

[30] The AWU submitted that the variation was required to pass the BOOT.

[31] The AWU identified the proposed clause 6.2 which is in relation to flexible part-time work provisions. The proposed clause 6.2 stated:

“6.2.1.3 Expected hours of work shall be shown in a roster published 7 days in advance;

6.2.1.4 However, actual hours –

i. 6.2.1.4.1 can be determined otherwise by the employer, provided they are notified to the employee with no less than 48 hours’ notice; and

ii. 6.2.1.4.2 can be specified and worked as a fixed start time to close or to finish as advised by the employer on the day, to meet the exigencies of club operations and patronage, including seasonal fluctuations.

6.2.1.6 All time worked in excess of eight hours per day, outside of a spread of eleven hours on any day, on any more than five days in any one week or in excess of the ordinary hours per week agreed upon at engagement or subsequently in writing, will be overtime, paid for at overtime rates.”

[32] The AWU compared this provision in relation to the reference award: the Registered and Licensed Clubs Award 2010 (the Award). Clause 10.4 of the Award stated:

10.4 Part-time employment

(a) Substantive provision

(i) An employer may employ part-time employees in any classification in this award.

(ii) A part-time employee is an employee who is employed in a classification in Schedule C—Classification Definitions and who:

• is engaged to work fewer than 38 ordinary hours per week or, where the employer operates a roster, an average of fewer than 38 hours per week over the roster cycle;



• has reasonably predictable hours of work; and



• receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

(iii) At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work either:

• specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day; or



• specifying the roster that the employee will work (including the actual starting and finishing times for each shift) together with days or parts of days on which the employee will not be rostered.

(iv) Any agreed variation to the regular pattern of work must be recorded in writing.

(v) An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

(vi) All time worked in excess of the employee’s agreed ordinary time hours will be overtime and paid for at the rates prescribed in clause 28—Overtime.

(vii) An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 10.5.

(viii) A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.

[33] The AWU submitted that clause 10.4 did not provide the ability of the Applicant to unilaterally amend the “regular” or agreed hours of a part-time employee.

[34] The AWU further submitted that the proposed clause 6.2.1.6 was “vastly inferior” to the Award at clause 10.4(a)(vi) in that the Award provided that a part-time employee was entitled to receive payment at overtime rates for all time worked in excess of the agreed hours of work.

[35] The AWU relied upon the decision of Deputy President Gooley in Roseneath Aged Care Centre v NSW Nurses & Midwives’ Associate; Australian Nursing Federation - new South Wales Branch; Health Services Union (Roseneath), 9 where she stated that such a provision is “clearly less beneficial”.10

[36] In that matter, it was held that the proposed agreement did not pass the BOOT in relation to part-time employees. Roseneath was appealed to a Full Bench of the Commission. The appeal was allowed on the basis of an undertaking being provided by the Employer such that no part-time employee would be “directed” to work additional hours without agreement from the employee. 11 No such undertaking has been sought or offered by the Applicant.

[37] The AWU also considered the proposed casual conversion clause. The proposed variation to clause 6.1.3 stated:

“In recognition of this change for existing casual employees of Yaralla Sports Club Inc. the Club will give positive consideration to conversion of existing casuals with over 24 months service and exemplary performance and conduct to full or part-time as appropriate.”

[38] Clause 5.1 of the Agreement incorporates the “terms and conditions set out in the Award”. Clause 10.6 provides for casual conversion for employees who are employed for a period of at least 12 months.

[39] The AWU submitted that the proposed clause 6.1.3 eroded the entitlement contained in the Award, which is incorporated into the Agreement.

Objects of the Act

[40] The AWU submitted that the Act aims to achieve productivity and fairness by emphasising enterprise-level collective bargaining. This emphasis is underpinned by the good faith bargaining obligations and the rules governing industrial action.

[41] The AWU submitted that the Agreement has a nominal expiry date of 14 May 2015 but that the proposed variation has effect over a period of “not less than 3 years”. This would extend the “effective” operation of the variation, beyond the nominal expiry date. This indicated, in the AWU’s submission, that the Applicant intended to have the Agreement in place for another 3 year period, and not to participate in a bargaining process for a new agreement.

Applicant’s response

[42] The Applicant responded to the AWU’s objections.

Signing of proposed variation

[43] The Applicant submitted that a compliant variation has been filed, after being requested by the Commission. The Applicant submitted that the employee who signed the variation is an employee covered by the Agreement.

Genuine agreement

[44] The Applicant submitted that the proposed variation was put to employees during information sessions on 21 January 2014 and on 5 February 2014, as well as on 17 February 2014, prior to the ballot occurring.

[45] On 28 January 2014 employees were provided with further materials in relation to the ballot.

[46] The Applicant generally submitted that it was the AWU that did not pursue participation in the variation process and that it had provided the material to the AWU in a timely fashion for its consideration. The Applicant submitted that it was a “genuine oversight” that the AWU was not advised of a change in the ballot date. The Applicant stated that there was no deliberate attempt to hide the information.

[47] As to the time of the vote, the Applicant submitted that 8.45am on a Monday morning was chosen to accommodate the operational requirements that would be attended by releasing employees from work, and providing an opportunity to those employees, not rostered to work, to attend to the vote, without unduly interfering with their time off. No evidence was submitted as to the employees preference for the timing of the vote.

[48] The Applicant submitted that employees were advised by direct mail on 28 January 2014 regarding the ballot. The cover letter relevantly stated:

“A ballot will be conducted on Monday 17 February at 8.45am at yaralla Sports Club to provide employees with the opportunity to approve the agreement. Only persons covered by the agreement shall be entitled to cast a vote and the ballot shall be secret. An attendance role shall be taken and two members of staff shall be called upon to fulfil the role of scrutineers on the day.”

BOOT

[49] The Applicant conceded that the provisions “go further” than those provided for in the Award. The Applicant did not disagree that they were relevant to a consideration of the BOOT.

[50] The Applicant submitted that the provisions do not impose unreasonable demands on employees given that the Act has been amended to strengthen consultation obligations regarding changes to rosters or regular hours of work.

[51] The Applicant did not make any submission as to the increased casual conversion clause.

Consideration

[52] In considering the application, the Commission must be satisfied that, had the Agreement (as proposed to be varied) been filed as an application under s.185 of the Act, the Commission would have been required to approve the Agreement under s.186.

Genuine agreement

[53] Section 188 of the Act has effect in relation to an application pursuant to s.210 of the Act as if reference to the proposed agreement were references to the proposed variation and further, that references to employees covered by the agreement are taken as references to affected employees for the variation.

[54] I am satisfied as to those matters contained in ss.188(a)(i) and (b). The only matter that falls for consideration, in relation to this limb of the objection, is s.188(c).

[55] The AWU’s objections in relation to this matter proceed on two limbs: that employees were not provided with a proper opportunity to vote because of the timing to vote and/or the AWU was “deliberately misled” regarding the timing of the vote.

[56] As to the second limb and the submission that the Applicant “deliberately misled” the AWU, there is no evidence before the Commission that could satisfy it of a positive intention, on the part of the Applicant, to mislead the AWU. The evidence of Mr Schroeder is that the failure to advise the AWU of the varied date for the vote was a genuine oversight. The AWU did not seek to cross-examine Mr Schroeder or put to him that this was not true. There is no reason put by the Union to doubt the truthfulness of Mr Schroeder’s evidence. The height of the AWU’s submission was circumstantial in that the AWU drew an inference of deliberate action on the part of Mr Schroeder from the fact of the failed attempt by the Applicant to previously terminate the Agreement, which was opposed by the AWU. Given the seriousness of the allegation clear and cogent evidence would be necessary to make such a finding.

[57] I also note that the AWU has not provided any evidence of any employees who say that they would have altered their vote, or had sought that the AWU been present at the ballot. There is no evidence to suggest that the ballot was tainted or not accurately counted. While it is regrettable that the Applicant did not inform the Union of the changed time, the second limb of the AWU’s objection, on the basis of s.188(c) is not made out, the evidence in this regard, does not give rise to a reasonable ground for believing that the variation was not genuinely agreed to. Both parties could have been more proactive in discussing or pursuing the variation with each other.

[58] The first limb relates to the timing of the vote. The AWU submitted that the time for the vote was chosen because there would be the fewest employees available and most of the casual employees (most directly affected by the proposed variation) were not at work.

[59] Mr Schroeder’s evidence, which was not challenged, is that this time presented the most operationally appropriate time for the vote and was chosen to accommodate those employees who were rostered off.

[60] There is no evidence that any employee questioned the time, sought to place any kind of absentee vote, was otherwise precluded from voting, or raised this as an issue. There is also no evidence of any employee that they would otherwise have voted no to the proposal but for the method and time of the vote.

[61] In the absence of any evidence of this sort, and in consideration of Mr Schroeder’s uncontested evidence, I am satisfied that the employees were aware of their rights, were aware of the time and method of the vote and that the vote was not otherwise inappropriate. While perhaps other methods and times of voting were open to the Applicant, there is no evidence to form a reasonable ground for considering, on this basis, that the variation was not genuinely agreed to.

[62] I am satisfied that the variation was genuinely agreed to.

Signing of proposed variation

[63] It is correct that the AWU has not signed the variation. The variation is required to be signed in accordance with s.210(2)(a) of the Act. Section 210(4) of the Act provides that the Regulations may prescribe requirements for the signing of variations. Regulation 2.09A of the Fair Work Regulations 2009 provides:

2.09A Requirements for signing variation of enterprise agreement

(1) For subsection 210(4) of the Act, this regulation prescribes the requirements for the signing of a variation to an enterprise agreement.

(2) For paragraph 210(2)(a) of the Act, a copy of a variation to an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement as varied; and

(ii) at least 1 representative of the employees covered by the agreement as varied; and

(b) it includes:

(i) the full name and address of each person who signs the variation; and

(ii) an explanation of the person’s authority to sign the variation.

Note: Paragraph 210(2)(a) of the Act requires an application for approval of a variation to an enterprise agreement to be accompanied by a signed copy of the variation.

(3) Unless the representative of the employees covered by the agreement as varied is an employee in a class of employees who will be bound by the agreement as varied, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement as varied.

[64] The variation was not initially signed in accordance with the Act. This matter was queried with the Applicant and a further signed variation was provided. This variation was signed by an individual employee who the Applicant submitted was an employee covered by the Agreement and is a member of the AWU.

[65] The AWU is correct in submitting that this employee’s signature is not taken to be an endorsement of the Agreement on behalf of the AWU. However, Regulation 2.09A only requires that the variation be signed at “at least 1 representative of the employees.

[66] In so far as it may be said that the Act requires that the signed variation be complete prior to the filing of the application, neither party has fully addressed this point. It is however, a procedural matter. If it were a requirement that the variation be signed prior to the filing of the then the Act provides that the Commission may waive an irregularity in the form or manner in which an application is made: s.586(b). It is commonplace that applications for approval of enterprise agreements are filed with unsigned materials. This is often due to the geographical location of employer and employee representatives and the tight timeframe within which parties are required to file such applications. It would be incongruous if the Act, and the Regulations, operated such that these numerous applications were not made in accordance with the Act due to a simply matter of form.

[67] In so far as there was, at the time of filing, an irregularity in the application, the Commission waves that irregularity pursuant to s.586(b). I note that the provision of documents compliant with Regulation 2.09A have previously been accepted by the Commission subsequent to the filing of an application. 12 There was no evidence or submission made that the employee who signed the variation was not an “employee representative”.

Operation of the variation

[68] I have taken into account the Union’s submissions in relation to the apparent 3 year period of the variations. This is not an impediment to the approval of the variation. I am satisfied that the variation does not impermissibly alter the nominal expiry date and I note the various mechanisms under the Act in relation to enterprise bargaining once the Agreement has passed that date.

BOOT

[69] I have formed the preliminary view that the Agreement does contain provisions that are less beneficial than the reference instrument. Those clauses relied upon by the AWU are inferior to the entitlements that employees would otherwise have received under the terms of the Award. There is insufficient material before the Commission to presently consider the BOOT in full. I make the following preliminary comments for the parties’ consideration.

[70] In particular I note that the notion of part-time employment is that the employee will have reasonably predictable hours of work. So much is consistent with the terms of the Award at clause 10.4(a)(ii) (extracted above). The proposed clause 6.2 does provide for a written agreement on “the number of ordinary hours per week”: clause 6.2.1.2. Clause 6.2.1.6 provides, amongst other things, that “all time worked in excess of...the ordinary hours per week agreed upon at engagement or subsequently in writing, will be overtime”. Whilst clause 6.2.1.4 does provide for a unilateral right in the employer to “determine otherwise” the actual hours of work of a part-time employee. This clause is ambiguous and it is unclear whether the term “expected hours” and “actual hours” means the shift, being the start and finish time, or whether the terms refer to the “ordinary hours” that have been agreed pursuant to clause 6.2.1.2.

[71] The term is less beneficial than the comparative award provision. In particular I note that pursuant to clause 10.4(a)(iii) of the Award a part-time employee is entitled to have a “regular pattern” of work agreed in writing, not just the ordinary hours of work. Under the proposed variation it is unclear whether a part-time employee would have any entitlement to “reasonably predictable hours of work”. I am also concerned that clause 6.2.1.4.2 is unclear on what it is that the employer can specify. An interpretation of that clause may mean that the Applicant can reduce a part-time employees hours at its own discretion and that part-time employees would be much closer to casual employment.

Conclusion

[72] The AWU’s objections in relation to genuine agreement, the procedural matters and the period of operation, discussed above, are dismissed. The matter will be further listed for Hearing to further consider the application of the BOOT to the proposed variation.

[73] I note that the above discussion of the BOOT is a preliminary consideration only. The Applicant may wish to consider the provision of undertakings.

[74] To assist the further consideration of the BOOT the Applicant is directed to file a comparison of expected earnings for all employee categories under the Agreement (as proposed to be varied) and the reference instrument. This comparison must include a comparison of each classification and employment types.

COMMISSIONER

 1   [2012] FWAA 5988.

 2   Yaralla Sports Club Inc Enterprise Agreement 2012 clause 2.1.

 3   AWU outline of submissions at paragraph 9.

 4   Fair Work Act 2009 (Cth) s.209(1).

 5   AWU outline of submissions at paragraph 20(i)-(v).

 6   Statutory Declaration of Mr Zac Beers, attachment 2.

 7   Ibid attachment 2.

 8   Ibid at attachment 3.

 9   [2013] FWC 4969.

 10 Ibid at [26].

 11   [2013] FWCFB 7430 at [3].

 12   See for example McConnell Dowell Constructors (Aust) Pty Ltd re Melbourne Airport Greenfields Site Specific Agreement 2011-2014 [2013] FWCA 4781 and M & I Samaras No 1 Pty Ltd & M & I Samaras No 2 Pty Ltd & M & I Samaras No 3 Pty Ltd T/A Samaras Structural Engineers re Samaras Structural Engineers & CFMEU Enterprise Agreement 2010[2012] FWAA 862.

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