[2011] FWA 4925

[2011] FWA 4925

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Chirotherapy Pty Ltd
(AG2011/10909)

COMMISSIONER MCKENNA

SYDNEY, 29 JULY 2011

Application for approval of the Chirotherapy Employee Enterprise Agreement - application dismissed.

[1] On 18 July 2011, Chirotherapy Pty Ltd (“the applicant”) filed an application for the approval of a single-enterprise agreement titled the Chirotherapy Employee Enterprise Agreement (“the Agreement”). The matter was listed on 25 July 2011. There was no appearance by or on behalf of the applicant and nor was there any adjournment application (or subsequent advice concerning attendance on 25 July 2011). As such, I have determined to consider the application on the papers.

[2] The Agreement is in terms similar to a template enterprise agreement that has been considered previously by me, as well as by various other members of Fair Work Australia, being a template used by a range of chiropractic businesses. There are variants on the template, albeit apparently derived from a general template. The present application before me appears to involve an early generation of the template. That is, other applications have involved versions of the template that appear to incorporate some, but not all, undertakings that have been given in connection with earlier approvals of such enterprise agreements by Fair Work Australia. The Form F17 (Employer’s Declaration in Support of Application for Approval of Enterprise Agreement) also contains responses similar to a template statutory declaration which typically has been filed in support of applications for the approval of this general template.

The employer’s declaration

[3] The template employer’s declaration in support of this particular application was apparently given to the applicant’s receptionist for completion, this being the declarant’s stated occupation.

[4] Among other matters, the following observations may be made about the content of the employer’s declaration filed in relation to this application:

question 2.1 seeks the provision of the notice of representational rights, but a copy of that notice was not attached to the employer’s declaration;

the response to question 2.2 indicates that the date on which the voting commenced (here involving four employees) was 29 June 2011 and that voting concluded on 6 July 2011;

there is no response to question 2.4, which seeks information about the steps taken by the employer to ensure that relevant employees were given, or had access to, the written text of the Agreement and any other material incorporated by reference in the Agreement during the seven day period ending immediately before the start of the voting process;

there is no response to question 2.5, which seeks specification of the steps taken by the employer (at least seven days before the start of the voting process) to notify all relevant employees of the time and place at which the vote was to occur and the voting method to be used;

as to question 2.6, concerning the steps taken by the employer to explain the terms of the Agreement, and the effect of those terms, to relevant employees, the response given is incomplete as to dates, reading:

“(i) Employees were provided with a draft of the agreement together with the Notice of Bargaining rights [sic], for their review;

(ii) Employees were provided with the opportunity to review the agreement and raise any concerns or changes they wished to seek;

(iii) On [insert date] a meeting was held where the agreement was discussed with employees and questions answered;

(iv) Employees were provided with a final agreement after [insert date] and provided [insert days] to consider and discuss it prior to a vote on [insert date].”

as to question 3.1, concerning modern awards and award-based transitional instruments, if any, that cover or apply to the employer and the whole or any portion of the employees to whom the Agreement will apply, the answer provided reads as follows:

“Prior to 1 January 2010, Chiropractors were award free;

The Health Award 2010 [sic] now applies to Chiropractors as health professionals and their support staff. Some support staff were previously covered by the State Clerical award

[Insert the award from your State from the following list:

Queensland Clerical Employees State Award 2002 AN140067

Clerks (South Australia) Award AN150039

Clerks (ACT) Award 1998 AP772208

Clerical and Administrative Employees (NT) Award AP839196

Clerical and Administrative Employees (State) Award NSW AN120664

Clerical and Administrative Employees (Victoria) Award AP773032

Clerical and Administrative Employees (Private Sector) Award Tasmania AN170017

WA Clerks (Commercial, Social and Professional Services) Award AN160066].” [Bold in original; dot points omitted]

question 3.2 replicates the response provided to question 3.1 as set out in the bolded text above;

question 3.4 asks: “Does the agreement contain any terms or conditions of employment that are less beneficial than equivalent terms and conditions in the reference instrument(s) identified in questions 3.1 or 3.2?” There is no response given in relation to the Yes/No question in the employer’s declaration. The template declaration then continues, in terms with which I am now generally familiar, as follows: “We [sic] do not believe so, but make the following comments: ....”. Five paragraphs are then set out dealing with miscellaneous matters.

question 3.5 asks whether the agreement contains any terms or conditions of employment that are more beneficial than equivalent terms and conditions in the reference instrument(s) identified in questions 3.1 or 3.2. The response given in the employer’s declaration is “Yes”, and is elaborated over a number of paragraphs, relevantly omitting the percentage in question at para (iii):

“(iii) Clause 12 and 13 minimum weekly wages have been increased over the Health Award by [insert percentage]. Whilst it is difficult to reconcile classifications with the former State Clerical Award, the rates in the modern Health Award appear higher and thus the rates in the agreement also appear substantially higher;”.

[5] The employer’s declaration continues, below the response after question 4.4, as follows:

“I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.”

A signature of the person making the declaration then appears on the statutory declaration, which was declared on 15 July 2011 at Gordon Post Office in the State of New South Wales. I do not have any expertise in signature analysis, but nonetheless observe that the signature on the statutory declaration does not appear to resemble the given name of the receptionist in question and nor does it appear to resemble the signature of the said receptionist otherwise appearing on the Agreement’s signature page.

The Agreement

[6] To the extent the employer’s declaration contains any measure of information relevant to the consideration of the application for the approval of the Agreement, the information is, self-evidently, incomplete and in various respects otherwise incorrect. Despite the assertions in the employer’s declaration that the rates of pay in the Agreement appear “substantially higher” than the modern award, the rates of pay for employees and trainees are lower than those in the Health Professionals and Support Services Award 2010, as are various allowances. Among other matters, the Agreement’s redundancy payments, which are referenced to the National Employment Standards, are also inferior to those that would appear to apply to some employees who would be covered by the Agreement. In this respect, the standard provisions in New South Wales-derived notional agreements preserving State awards invariably specify arrangements which differ from the minima in the National Employment Standards, with the standard New South Wales scale culminating at twenty weeks’ pay. There are no discernible benefits in the Agreement that would address the range of sub-award conditions in terms of the better off overall test.

[7] Further, as I have noted earlier in this decision, variants of the template used for this Agreement have been the subject of consideration by a number of members of Fair Work Australia, some of whom have raised concerns such as to involve the provision of written undertakings by miscellaneous employers. This version of the template enterprise agreement is one containing clauses which have been the subject of earlier undertakings to address various concerns, including my own concerns and those of other members. As to the enterprise agreements I have been able to identify where undertakings have been given concerning this general template, I respectfully agree in the main with the other members’ concerns as such concerns may be discerned from, and are reflected in, the undertakings given in connection with earlier approvals.

[8] I note the Agreement appears to have pages missing, with the allocation of traineeships to wage levels seeming to cut-out, part-way. Last, I note also that the requirements of reg. 2.06A of the Fair Work Regulations 2009 in relation to the Agreement have not been met. I observe also that the Agreement describes the employee’s authority to sign in the following terms: “Authority to sign on behalf of Employee’s [sic] results from Chirotherapy”.

Conclusion

[9] Among other matters, the employer’s declaration does not contain information that could be considered to be reliable, accurate, complete or otherwise acceptable; the content of the employer’s declaration does not and could not constitute a proper basis for approval of the Agreement on the papers. In any event, the Agreement itself does not pass the better off overall test when matters such as remuneration are considered; and the Agreement does not otherwise incorporate undertakings of the type which have been provided before Fair Work Australia in relation to other applications containing template provisions similar to, or identical to, clauses in this Agreement. There are other concerns arising in relation to this application apart from those identified in this decision, but, in view of the matters already identified which, in and of themselves, lead me to conclude the application for the approval of the Agreement should be declined, it is unnecessary to further detail such matters in this decision. I do, however, propose to note, in passing, that concerns previously have been expressed by Fair Work Australia about formulaic statutory declarations prepared by third party representatives in support of applications for the approval of enterprise agreements, relevantly being statutory declarations which did not appear to contain the independent and considered responses of the declarants themselves. (See, for example, a number of Fair Work Australia decisions in 2010 concerning applications involving People in SmallBiz, as those decisions considered the content of certain declarations filed in support of applications for the approval of miscellaneous enterprise agreements.) Similar concerns appear to arise here.

[10] Given there was no appearance by or on behalf of the applicant on 25 July 2011, when the applicant otherwise would have had the opportunity to address matters arising, I determined to consider the application on the papers. Having now so considered the application on the papers, the application for the approval of the Agreement is dismissed.

COMMISSIONER

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