69.1. Workers and the Court recognize the need for an ongoing review of each tribunal`s organizational structures to respond to changing responsibilities and circumstances, including funding, government initiatives and strategic priorities. However, it is important to remember that while an enterprise agreement may include an exclusion in its coverage clause for future enterprise agreements relating to a project or site, the coverage (and application) of a subsequent enterprise agreement to existing employees still depends on the specific terms of the subsequent enterprise agreement and the rule applicable in S 58 (2). 2. Under this agreement, part-time workers are entitled to a minimum 3-hour employment under Article 6.4 (f) of the 2015 Public Service Enterprise Award. Similarly, the question of coverage for existing CPB employees, who could move from a site covered by the agreement to a site, would raise the question of whether the job in question (i.e. the job description) is the same. Article 180, paragraph 5, requires that, before workers are invited to vote on an enterprise agreement, the employer should take “all appropriate measures” so that “the terms of the agreement and the effect of these conditions are explained to the workers concerned” and that the explanation be provided appropriately in the particular circumstances of the workers. The Court found that Clause 3.3 stated the intention that a future enterprise agreement specific to the project or location would cover CPB and all staff members of that particular project or site, excluding the agreement, and that an enterprise agreement could do so using job descriptions identifying the employment covered by that agreement as project or site specific. In response to the CFMMEU`s argument that Article 3.3.58 (2) had challenged its intention to exclude coverage of the agreement in favour of a subsequent site-specific enterprise agreement, which would then apply to workers instead of the agreement, the Bundesgerichtshof clarified the distinction between the enterprise agreement “coverage” and “application” as well as the operation and interaction of Ss 51, 52, 53 and 58 of the FW Act. 4.1.
A worker dissatisfied with the action in paragraph 3, with the exception of paragraph 3.2 (e), may appeal the convention and the relevant provisions of the Public Service Act 1999. Failure to comply with a hearing warrant may lead the court to issue a fine or other orders. This is why it is essential for employers to ensure that safeguard clauses are developed in a certain way in future enterprise agreements by project or site, so that they are not broad enough to cover the same employment as a previous enterprise agreement, in order to avoid involuntary coverage of existing workers who may be transferred later on the project or site. In his appeal decision, Buchanan J.A. stated that the FCCA had “misunderstood” the effects of the underlying legislation and that it had erred in the design of the enterprise agreement, which found no finding that the employer had breached the terms of the agreement. Buchanan J.A. said it seemed to him that the terms of the agreement were to ensure that all employees who were covered by him actually had the same number of days of personal leave/paid care at their disposal, regardless of the length of the position, while ensuring that each absence was paid as if the time was worked.