[2011] FWA 1627 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Char Pty Ltd
(AG2011/5460)
COMMISSIONER RYAN |
MELBOURNE, 15 MARCH 2011 |
Australian Char Pty Ltd - Morwell Enterprise Agreement 2010.
[1] Application was made on 31 January 2011 by Australian Char Pty Ltd for approval of the Australian Char Pty Ltd - Morwell Enterprise Agreement 2010 (the agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). It was made by Australian Char Pty Ltd (the employer). The Agreement is a single-enterprise agreement.
[2] The employer’s declaration in support of approval (Form F17) identified that on 21 December 2010 the employer sent by Express Post to each employee:
[3] The covering letter was in the following terms:
“Please find enclosed a copy of the following documents:
1. Australian Char Pty Ltd - Morwell Enterprise Agreement 2010, as agreed at this time between the company and the employee representatives.
2. 2010 Agreement Explanation, a document that compares the current Morwell Collective Agreement 2007 and the agreement in (1) and
3. Manufacturing and Associated Industries and Occupations Award 2010 which is the modem award, the provisions of which are incorporated in the agreement (1) as noted in clause 6b.
It is a requirement of the Fair Work Act that the Company provide copies of these documents to all employees subject to the agreement mentioned in (1) at least 7 days before a vote is held by those employees to accept or reject the agreement.
We would ask that you consider the information provided and should you have any questions, contact your employee representatives or the company as soon as practicable prior to the vote taking place.
Given that most of the Char Plant employees are on leave due to the plant shutdown, the Company is providing for a postal vote on the agreement and as such have enclosed a voting form and a reply paid envelope.
We would ask that you take time to consider the information and then return your completed and signed ballot paper to us no earlier than the week commencing Monday January 10th 2011 and no later than Monday January 17 2011 . Any ballot paper dated or received outside this period will not be valid.
We have asked for signatures on the ballot paper in order that we can verify that the votes are valid, not to identify individual voting preferences.”
[4] Of the 25 employees eligible to vote 12 voted. Of these 12 only 5 were valid votes. There were 7 invalid votes; - 1 vote was not signed as required by the voting procedure and 6 votes were invalid because they were dated outside the voting period.
[5] I have considered the procedure implemented by the employer in light of the requirements of the FW Act.
[6] Sections.180, 181 and 182 of the FW Act deal with the making of enterprise agreements. These sections provide as follows:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).
Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement
Multi-enterprise agreement that is not a greenfields agreement
(2) If:
(a) a proposed enterprise agreement is a multi-enterprise agreement; and
(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and
(c) those employees have voted on whether or not to approve the agreement; and
(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;
the agreement is made immediately after the end of the voting process referred to in subsection 181(1).
Greenfields agreement
(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).”
[7] The language of these three sections of the FW Act leads me to conclude that Australian Char Pty Ltd has not complied with the requirements of the FW Act and that the enterprise agreement has not been made in accordance with the provisions of the FW Act.
[8] Section180(1) provides that an employer cannot request employees to vote on an enterprise agreement until the employer has undertaken three actions, namely:
[9] Each of these three actions has to occur within a set time. The requirement specified in s.180(2)(a) must occur sometime during the “access period”. The requirement specified in s.180(2)(b) must occur throughout the “access period”. The requirement specified in s.180(3) must occur before the start of the “access period”.
[10] The “access period” is defined in s.180(4) as being “the 7 day period ending immediately before the start of the voting process referred to in subsection 181(1).”
[11] The emphasis in the definition of “access period” is not on the actual commencement of the vote, nor on the conclusion of the actual vote but is expressed more generally to include the “voting process referred to in subsection 181(1).”
[12] It appears from the structure of Division 4 of Part 2-4 of the FW Act that there is a difference in meaning between the term “voting process” and the actual commencement or conclusion of the vote of employees. This is readily seen by comparing the language of subsections 182(1) and (2).
[13] In s.182(1) an agreement is made when a majority of employees approve the agreement. The making of the agreement occurs in a technical sense at the conclusion of the vote even if the voting process has not been completed. Thus if the voting process contains a detailed procedure for the counting of votes and the formal declaration of the results of the vote the enterprise agreement is not made at the conclusion of the declaration of the vote, which may be sometime after the close of the vote but rather is made as at the date of the close of the ballot. This is so because whilst it may take some time to count and declare the vote, the enterprise agreement is made “when a majority of those employees who cast a valid vote approve the agreement”, and, all that the count and declaration have done is to confirm that as at the close of the ballot a majority of those employees who cast a valid vote approved the agreement.
[14] In the case of a multi-enterprise agreement s.182(2) provides for a different time at which the multi-enterprise agreement is made. A multi-enterprise agreement is made “immediately after the end of the voting process referred to in subsection 181(1)”. The emphasis on the end of the voting process reflects the fact that in a multi-enterprise agreement there may be some enterprises where the vote went against approval of the agreement and some where the vote was to approve the agreement. In such a case the multi-enterprise agreement is only made in relation to those employers whose employees approved the multi-enterprise agreement. The voting process itself may include different start and finish times for the votes of employees at different enterprises. Thus the emphasis is placed upon the end of the voting process as the appropriate time to determine if the multi-enterprise agreement is made.
[15] As both sections 180(4) and 182(2) refer to “the voting process referred to in subsection 181(1)” that term must have the same meaning in both sections. S.180(4) refers to the start of the voting process and s.182(2) refers to the end of the voting process. However the language of s.181 does not refer to a voting process but only to a request by the employer.
The term “voting process” as used in s.180(4) and s.182(2) is reference to the employer requesting the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
[16] Whilst the term “voting process” is not defined the term should be given its ordinary meaning.
[17] ‘Process’ is defined in the Macquarie Concise Dictionary to mean:
“a systematic series of actions directed to some end”.
[18] The term “voting process” as used in s.180(4) and s.182(2) must include the systematic series of actions by which an employer initiates the request for employees to approve the agreement by voting on it, carries out the request for employees to approve the agreement by voting on it and determines the outcome of the request for employees to approve the agreement by voting on it. This must be so as the end of the process is to determine whether or not the employees approve the agreement.
[19] I note that s.180(3) requires the employer to take all reasonable steps by the start of the access period to notify relevant employees of both the time and place at which the vote will occur and the voting method that will be used. This requirement to give early notice to employees of what will occur does not detract from what constitutes the “voting process referred to in subsection 181(1)”.
[20] Whilst it is not necessary to detail every likely action that would comprise the systematic series of actions directed to having employees vote to approve an enterprise agreement, it would appear obvious that at least two of the actions would include the distribution of voting material to the employees and, where the vote is by postal ballot, the distribution to employees of the means to return their votes.
[21] As identified in paragraph 2 above the employer had at the very least commenced the “voting process’ on 21 December by sending to employees the covering letter for the vote, the ballot paper and the return envelope for the ballot paper.
[22] The access period as defined by s.180(4) was therefore the 7 day period ending immediately before the 21 December.
[23] Section 180(2)(a) required that the employer take all reasonable steps to ensure that during the 7 day period ending immediately before the 21 December 2010 that employees were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement. As the employer declares in the Form F17 the material required to be given to employees at least 7 days before the 21 December 2010 was not in fact given until the 21 December 2010.
[24] Similarly it is clear from the Form F17 that there was also non compliance with s.180(2)(b) and 180(3).
[25] The employer has not complied with the requirements of s.180(2)(a), 180(2)(b) and 180(3) of the FW Act. Non compliance with any one of ss.180(2)(a), 180(2)(b) or 180(3) means that the employer could not, because of s.180(1), make a request under s.181(1) to employees to approve the agreement and thus the employees could not make the agreement by voting for it under s.182.
[26] Therefore there is no valid application before the Tribunal. I dismiss the application.
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