ZNX Pty Ltd

[2013] FWCA 1071

[2013] FWCA 1071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

ZNX Pty Ltd
(AG2013/4795)

Electrical power industry
COMMISSIONER LEWIN	MELBOURNE, 19 FEBRUARY 2013

Application to approve variations to the Jemena Tasmania Electrical Works Collective Agreement 2011 - 2014 - extension of time - addition of employer as party to Agreement - jurisdiction - jurisdiction issue adjourned - some variations approved.

[1] An application has been made for approval of variations to the Jemena Tasmania Electrical Works Collective Agreement 2011 - 2014 (the Agreement) The application has been made pursuant to s.210 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The application seeks approval of variations described as follows:

1. Parties to the agreement reflect the new Zinfra business

The Company parties to the Agreement have been amended to Zinfra Contracting Pty Ltd (ABN 91 069 085 954) and ZNX (ABN 52 104 352 650) pursuant to clauses 1.1 and 1.3 of the Agreement. This is reflected throughout the Agreement.

2. Long Service Leave

As per Clause 8.11, the Company has aligned the Agreement to reflect State legislation for Long Service Leave and provide consistency for Long Service Leave entitlements. The Long Service Leave Agreement provision was previously Company accrued entitlement as well as grandfathered provisions (formerly Appendix C4).

3. Representation during dispute resolution process

The Company dispute resolution procedure has been amended at clause 2.1.5 to make it clear that employees have the right to appoint a representative at any stage during the process.

[3] Section 210(3) of the Act requires that an application to approve a variation to an agreement must be made within 14 days after the variation is made or, if in all the circumstances Fair Work Australia considers it is fair to extend that period, within such further period as it allows.

[4] According to the Form 23A, the variation was made on 22 November 2012. The application was lodged on 1 February 2013 therefore making it 57 days out of time. The Applicant has requested that Fair Work Australia extend the period of 14 days. This request is made on the basis that, by administrative error on behalf of the Applicant, an application was mistakenly lodged by Zinfra Contracting Pty Ltd on 5 December 2012. Upon noticing that Zinfra Contracting may not have had standing to make the application, the Applicant withdrew that application and lodged this one. In all the circumstances, I consider it fair to extend the period.

[5] A Hearing was listed in this matter on Thursday, 14 February 2013. Ms Jennifer Grey appeared on behalf of the Applicant and Mr Rodney Burles appeared for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, a bargaining agent for the Agreement.

[6] During the Hearing I raised concerns as to whether the Commission had the jurisdiction and power to approve a variation which would add an employer to the agreement that did not (and still does not at the date of this Decision) employ any of the relevant employees to whom the agreement applies. 1

[7] Mr Burles raised concerns regarding whether, at the time of the vote, the relevant employee’s properly understood that variation 1, as set out above, would mean that their employment with ZNX Pty Ltd would be terminated and they would be offered new employment by Zinfra Contracting Pty Ltd. Mr Burles gave evidence that his members would have likely assumed that the addition of Zinfra Contracting would result in a simple change of their employer’s name on their trucks and uniforms. Mr Burles stated that his members may be concerned about the possibility of not being offered employment by Zinfra Contracting once their employment with ZNX ceased.

[8] The Applicant submitted that information regarding this variation had been circulated among the employees but did not have this information available to tender at the Hearing. The Applicant undertook to provide this information to the Commission at a later date.

[9] At my suggestion the parties agreed to meet with each other in the absence of the Commission to hold discussions regarding the issues arising from variation 1 and report back to the Commission by close of business on Friday 22 February 2013. On this basis, I find it appropriate to adjourn the consideration of the approval of variation 1 (as provided above) until such time as the parties have had an opportunity to discuss the issues and explore any alternatives available to them. This approach was raised during the Hearing and agreed to by both parties.

[10] I am satisfied that each of the requirements of s.211 of the Act that are relevant to this application have been met with regard to proposed variations number 2 (Long Service Leave) and number 3 (Representation during dispute resolution process). Only these variations to the Agreement are approved and, in accordance with s.216, will operate on and from 19 February 2013.

[11] An order will issue accordingly

COMMISSIONER

Appearances:

Ms Jennifer Grey on behalf of ZNX Pty Ltd.

Mr Rodney Burles, appearing for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Hearing details:

2013

14 February

Melbourne

 1   See Mobil Refining Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Mobil Oil Australia Pty Ltd v National Union of Workers[2008] AIRC 705 (Unreported, Lacy SDP, 8 September 2008); Shop, Distributive and Allied Employees Association v McDonald’s Australia Limited [2009] AIRC 298; Herald and Weekly Times Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] AIRC 79 (Unreported, Lacy SDP, 30 January 2009)

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