[1] An application for approval of the Hyatt Ground Engineering P/L Enterprise Agreement 2011-2014 (the agreement) was made on 9 March 2011 by the Master Builders Association of NSW as representative for Hyatt Ground Engineering P/L.

[2] The application identified that the substantive provisions of the enterprise agreement were based on the "Master Builders Association of NSW template enterprise agreement" but that no other agreements based on this template had been dealt with by FWA.

[3] I have a number of concerns in relation to this application which are set out below. To assist me in addressing these concerns I have asked a number of questions of the applicant and have requested additional information and material to be filed with FWA.

[4] The Form F16 identified that 19 out of 20 employees appointed the same bargaining representative. If the employer provided any other information, direction or pro forma appointment forms to employees when the Notice of Employee Representational Rights was given out, a copy of such information is to be filed with FWA. The employer is to provide details of the person who has been appointed by the 19 employees as bargaining representative. In particular if the person is an employee of the employer, the position held by that person.

[5] The Form F17 identifies that the voting method used was a telephone vote. Who conducted the telephone vote? What was the question put to each employee?

[6] The Form F17 identifies that the agreement is to apply in every State and Territory. In which State or Territory are employees currently located?

[7] The Form F17 identifies that the agreement covers on-site construction workers but that it does not cover administrative or management employees. The terms of the agreement do not appear to be as clear. Clause 2.12 of the agreement defines an employee in the following terms:

(b) who performs work nationally throughout Australia; and

(c) who performs work in accordance with the classifications covered by this Agreement, and

[8] Paragraph (b) of the definition would appear to exclude from coverage of the agreement any employee who works in only one State or Territory for the employer. It would also exclude employees who work in more than one State or Territory but not in every State and Territory. This is so because the emphasis in paragraph (b) is that work is performed "nationally throughout Australia". Once this criterion is not met, as will be the case for most employees most of the time, then it would appear that an employee will not be covered by the agreement. Is this how clause 2.12(b) is intended to operate?

[9] Whilst paragraph (b) would operate to reduce the coverage of the agreement paragraph (c) appears to cover more employees than the employer intends. Any employee who "performs work in accordance with the classifications covered by" the agreement will fall within the coverage of the agreement. Paragraph (c) does not limit itself to persons who are classified into one of the classifications in Appendix 1. As the emphasis in paragraph (c) is on the performance of work rather than on the classification of employees, then an employee in a management titled position who performs work in accordance with a classification in the agreement would appear to be covered by the agreement. For example, Appendix 1 includes the classification of Construction Worker Level 6 which covers the work of leading hand, foreman or operator. The classification identifies that "this position is generally for more complex projects and supervision of a larger workforce." The work of the classification includes the supervision of employees. This means that a management titled employee who performs work of supervision of staff on a complex project would appear to be caught by paragraph (c) and thus covered by the agreement. Is this how clause 2.12(c) is intended to operate?

[10] Further difficulties in understanding the extent to which an employee may be covered by the agreement arise from the definitions in clause 2 of "daily hire employee" and "weekly hire employee".

[11] A daily hire employee as defined is limited to tradespersons. Therefore a non-tradesperson employed as a daily hire employee will not be covered by the agreement and will remain covered by the relevant modern award. Is this the intended effect of this definition?

[12] A weekly hire employee as defined is limited to Operators. The term Operator is not defined in the agreement and the only reference to Operators is within the classifications of Construction Worker Level 5 and Construction Worker Level 6. The plain language of the definition of "weekly hire employee" means that a labourer or leading hand or foreman who is employed on weekly hire will not be covered by the agreement but will remain covered by the relevant modern award. Is this the intended effect of the definition?

[13] I note that clause 4.3 which refers to part-time employment and clause 4.4 which refers to casual employment may each include employees who are not included within the definitions of daily hire employee or weekly hire employee. Is this intended?

[14] Given the above comments I require the employer to provide detailed information on each of the employees who the employer asserts will be covered by the agreement in order that I may consider whether such employees will be covered by the agreement. I would also require the employer to provide to FWA detailed evidence from the State Managers who explained the terms of the agreement and the effects of those terms to employees, as to what they explained to employees about the coverage of the agreement and the definitions I have referred to above.

The relationship between the Agreement and the Modern Award

[15] The language of clause 3.4 of the agreement is not clear. The agreement does not specifically incorporate any modern award provisions. A modern award is mentioned in clause 3.4.2 but only for identification purposes in relation to the BOOT.

[16] Section 57 of the FW Act specifically ousts the operation of a modern award whilst an enterprise agreement applies to employees. Thus even though clause 3.4.1 states that the agreement is to operate "subject to Chapter 2 of the FW Act" this will not operate to incorporate the modern award into the agreement.

[17] I have considered the agreement for BOOT purposes on the basis that this agreement is a stand alone agreement and that no provision of the relevant modern award is incorporated into the agreement. Is this the intended effect of clause 3.4?

[18] Is it intended that the definition of 'Distant work' will entitle an employee who maintains two residences (eg a holiday house or investment property) to claim the allowances in clause 6.2.3 of the agreement?

[19] It is noted that definitions also appear inconsistent with wording of clause 6.2.1.

[20] Clause 3.6.1 is nonsensical. How can the employer make a claim against itself?

[21] Clause 3.6.2 would operate to oust the operation of any common law contract or the legal effect of any company policy or procedure. It would also appear to oust any state law dealing with employment relationship. This provision would mean that employees would be worse off under the terms of the agreement than under the relevant modern award. How is it asserted that employees will be better off under the terms of this agreement than under the relevant modern award?

[22] Clause 4.5.2 requires employees to perform higher duties but there is no provision in the agreement requiring the employer to pay higher duties. The relevant awards all contain higher duties clauses. How is it asserted that employees would be better off under the terms of this clause than under the relevant modern award?

[23] Clauses 4.5.4 and 4.5.5 conflict with the right of employees to exercise their legal rights under the FW Act in relation to either a breach by the employer of the terms of the agreement or of the FW Act or of other industrial legislation. The clauses may even operate to prevent employees from assisting proper authorities to enforce the law. How is it asserted that these clauses pass the BOOT?

[24] Clause 5.1.2 would operate to enable any over agreement payment on ordinary hours to be used to affect any underpayment of superannuation, for example. This is an extremely broad affect provision. How is it asserted that employees would be better off under the terms of this provision than under the relevant modern award?

[25] Clause 5.2.1 refers to full time employees. This simply recreates the problems caused by Clause 2 - Definitions and Clause 4.1.

[26] Clause 6.2.2 provides no specific provisions for Victoria, South Australia, Tasmania, West Australia or Northern Territory. Is this intended and, if so, how does this provision pass the BOOT?

[27] Clause 7.1.2 is in conflict with clauses 4.1.2. and 4.3.2. Which clause is to prevail?

[28] Clause 7.2.2(d) provides for the paying out of RDOs at ordinary time earnings. This undervalues hours. If not used, RDOs are effectively overtime and should be paid out at overtime rate. How is it asserted that this passes the BOOT?

[29] Clause 7.3.1 provides for overtime after 8 hours work. However, as casuals only work ordinary hours of 7.2 per day, a casual should be paid overtime after 7.2 hours, not 8 hours. How is it asserted that this passes the BOOT?

[30] Clause 7.12 has BOOT issues as the shifts don't line up with the award. Meal breaks are unpaid as they appear to be set by clause 7.5. It is not clear if shift workers get RDOs. How does this clause pass the BOOT?

[31] Clause 9.3.1 has the effect of reducing shift workers' pay for annual leave purposes back to day worker's rate of pay plus 17.5%. The awards provide for annual leave loading as 17.5% of shift allowance. How does this clause pass the BOOT?

[32] Clause 9.2.5(a) does not reflect the National Employment Standards (NES) provision that 'The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave'. (s.88(2)). How is it asserted that this clause can be in an enterprise agreement?

[33] Clause 9.2.5(c) and (d) doesn't reflect NES provision that any requirement to take leave must be reasonable. (s.93(3)). How is it asserted that this clause can be in an enterprise agreement?

[34] Clause 9.6.4 is directly contradictory to clause 9.6.3. The proof requirements in the NES are only to the level to satisfy a reasonable person, therefore clause 9.6.3 is OK, whilst clause 9.6.4 may not be. How is it asserted that this clause can be in an enterprise agreement?

[35] Clause 19.8.4 is missing the words "by or" after the word "declared" which appear in the NES provision. Is it intended that the agreement will provide a lesser entitlement than the NES?

[36] Clause 10.8.6 - is this consistent with NES? Section 107(5) permits it but is what s.107(5) permits only that which is consistent with s.107(3)? How is it asserted that this clause can be in an enterprise agreement?

[37] Clause 12.2.1 imposes same notice on employee as on employer yet the relevant modern award does not impose extra week's notice on employees over the age of 45 years. How is it asserted that this clause passes the BOOT?

[38] Clause 12.3.1 is inconsistent with clause 4.4.4. Which clause prevails and how is it asserted that the provision passes the BOOT?

[39] Clause 12.5.3 provides for a definition of "serious misconduct" which is very broad, much broader than Regulation 1.07. This would have the effect of treating some conduct that might justify dismissal with notice as now being dismissed without notice. How is it asserted that this passes the BOOT?

[40] Clause 14.2 gives rise to a BOOT issue. As the OHS policy of the company is not included in the agreement, there is nothing to which the BOOT can be applied. Therefore the clause must fail the BOOT. How is it contended otherwise?

[41] Clause 15.3.2 gives rise to a BOOT issue as it makes an employee liable for tools stolen even when an employee has taken all reasonable precautions. How is it asserted this this passes the BOOT?

[42] The Applicant is required to file with Fair Work Australia any further submissions and evidence in support of the application by close of business on 28 April 2011.

[43] The applicant is also required to provide any undertakings it may wish to offer to FWA in relation to any of the above concerns by close of business on 28 April 2011.

[44] The applicant is directed to provide a copy of any response, including any proposed undertakings, to each employee by close of business on 29 April 2011.

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