Brockfield Enterprises Pty Ltd and Ors [2015] FWC 7863 (AG2015/4222). ASBURY, DP. 17 NOVEMBER 2015

As we all know, when submitting an EBA to the FWC, it must accompanied by a number of forms. In this matter the DP found that some of the paperwork was “… at best inaccurate and at worst, misleading.”

In summary:

  • When the vote was taken by the employees, the rates of pay were slightly over award. But in the meantime the Annual Wage Review was handed down by the FWC, which made these rates below par.
  • The nominal expiry date is not consistent with the requirements of the Act in that it states that the Agreement will operate for a period of four years from a date which is seven days after approval by the Commission, rather than from the date the Agreement is approved.
  • The consultation term does not meet the requirements of the Act.
  • Clauses which provide that employees will be paid at ordinary rates when they “volunteer” to work at times or on days which would entitle them to be paid at overtime or penalty rates.
  • Provisions of the Agreement relating to piecework, which extended piecework arrangements to employees covered by other modern awards which do not allow piecework arrangements
  • Failure to include provisions in relation to setting ordinary hours of work for part time employees and overtime payments for hours worked in excess of, or outside of, those ordinary hours.
  • The superannuation clause in the Agreement may be an unlawful term under the Act as it does not require the default fund to be a complying fund.

The Applicants proposed that the Commission accept a number of undertakings in the hope that the EBA would be approved.

The DP cited AMIEU v Golden Cockerel Pty Ltd:

  • The construction of an award, like that of a statute, begins with the consideration of the ordinary meaning of the words;
  • Regard must be paid to the context and purpose of the provision or expression being construed including the legislative background against which it was made and in which it is to operate;
  • A narrow, pedantic approach should be avoided and meanings which avoid inconvenience or injustice may reasonably be strained for; and
  • The exercise is not one of giving effect to some anteriorly derived notion of what would be fair or just regardless of what is written in the Award.

The DP concluded:

“The voluntary hours provisions are a substantive part of the Agreement…For the reasons set out above, and in many Decisions of the Commission I am satisfied that the Agreement does not pass the BOOT as required [under]the Act. I can only echo the observations of Deputy President Bartel in MP Resources Pty Ltd to the effect that the agreement … bears more than a passing similarity to other applications …which have been found to have failed the BOOT on the basis that they contain voluntary hours provisions. The Applicants, through their legal representative, have put arguments that have been consistently rejected by the Commission in many cases. The Applicants have not attempted to establish that exceptional circumstances exist.”

Commentary

When drafting an EBA, put the relevant award(s) in one hand and the EBA in the other. If the EBA weighs slightly more (in configurative terms) then it will pass the BOOT. It was the same under the previous legislation which had the “no disadvantage test”, so it really should not be that hard.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
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  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
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Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.