[2010] FWA 8937 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
Estate Agents Co-Operative Clerical, Pre-Press and Information Technology Employees Collective Agreement 2010
(AG2010/17225)
Graphic Arts industry | |
COMMISSIONER CAMBRIDGE |
SYDNEY, 22 NOVEMBER 2010 |
[1] An application has been made for approval of an enterprise agreement known as the Estate Agents Co-Operative Clerical, Pre-Press and Information Technology Employees Collective Agreement 2010 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was made by Estate Agents Co-Operative Limited (the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Sydney on 6 September 2010 by the Employer’s representative, Solutions For The Workplace Pty Ltd (the agents). The application included a Statutory Declaration of John Carson made on behalf of the Employer and dated 3 September 2010, (the Declaration). The Declaration did not state the date on which the Agreement was made. Subsequently it has been confirmed that the agreement was made on 6 August 2010, therefore the application was made some 17 days beyond the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.
[3] The application for approval was listed for Hearing on 5 October 2010, at which time Mr J Tamplin from the agents appeared for the Employer together with Ms F Paranihi from the Employer. During the proceedings held on 5 October, Fair Work Australia (FWA) identified various issues relating to the application documentation and the contents of certain terms contained in the Agreement which required clarification.
[4] Mr Tamplin provided some clarifications during the Hearing. The Employer was invited to consider some residual issues raised by FWA and to respond in writing. FWA has subsequently received undated correspondence from the agents, which included: (1) a further Statutory Declaration of John Carson dated 25 October 2010, (the further Declaration); (2) a document providing additional submissions; and (3) an undated document of clarifications and amendments to be applied to the Agreement signed by the Employer, and presumably proposed to FWA pursuant to s.190 of the Act (the Undertakings).
[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing and the materials subsequently provided by the agents including the Undertakings.
[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before FWA can approve of an enterprise agreement. Subsection 185 (3) of the Act is in the following terms:
“When the application must be made
(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.”
[7] The further Declaration has clarified that the Agreement was made on 6 August 2010 and therefore the application was made some 17 days beyond the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act. Consequently this matter would require an extension of the lodgement time limit by way of subsection 185 (3) (b) of the Act. It is necessary for FWA to consider whether it in all the circumstances it would be fair to extend the lodgement time limit.
[8] During the proceedings held on 5 October 2010, FWA alerted the agents to various concerns relating to both the application documentation and the terms of various provisions contained within the Agreement. One particular concern related to the contents of the ballot paper that had been utilised in this instance. Unfortunately, the concerns relating to the contents of the ballot paper have not been satisfactorily addressed either at Hearing or as part of the subsequent materials provided to FWA.
[9] Further, the additional submissions have not provided sufficient clarification in respect to numerous concerns regarding the terminology of various clauses contained within the Agreement. Unfortunately numerous clauses of the Agreement, even if varied in accordance with the Undertakings, remain confusing and ambiguous. In some instances the additional submissions exacerbated concerns rather than provide for clarification. For example, at point 6 of the additional submissions the level 4 clerical award rate is quoted to be $690.53, the correct figure from the Clerk's Private Sector Award 2010 (MA000002) for the level 4 classification is $736.00.
[10] In any event, the Undertakings included some 16 identified alterations to the Agreement including the complete replacement of Schedule 1 which contained all pay rates and allowances. The Undertakings, if accepted, would result in substantial changes to the Agreement and would thereby be invalidated by subsection 190 (3) (b) of the Act. Therefore I am not prepared to accept the Undertakings.
[11] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act. In particular the application was not made within the lodgement time limit established by subsection 185 (3) (a) of the Act. Further, in all of the circumstances I do not think it fair to extend the lodgement time limit. In addition, I am not prepared to accept the Undertakings as to do so would result in substantial changes to the Agreement. Therefore the approval sought pursuant to s.185 is refused. Accordingly the application is dismissed.
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