[2011] FWA 6917 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Cement Australia Pty Limited
(AG2011/12495)
Cement and concrete products | |
COMMISSIONER RYAN |
MELBOURNE, 14 OCTOBER 2011 |
Application for approval of the Cement Australia Packaged Products Operators West Footscray (Vic) Collective Agreement 2011.
[1] Application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cement Australia Pty Limited for approval of the Cement Australia Packaged Products Operators West Footscray (Vic) Collective Agreement 2011 (the agreement). The application for approval was supported by a Statutory Declaration (Form F17) of Ms Sarah Hardie, Human Resources Manager on behalf of Cement Australia Pty Limited (Cement Australia).
[2] Ms Hardie’s statutory declaration attached a copy of the Notice of employee representational rights (NERR) which was provided to employees.
[3] The NERR was generally in the form of the Notice contained in Schedule 2.1 of the Fair Work Regulations with the exception that the Notice contained an additional requirement that directed employees who wished to nominate a bargaining representative for the agreement to do so be ‘Monday 15 August 2011’.
[4] The effect of the additional requirement contained in the NERR was that employees were left with the clear impression that if they did not appoint a bargaining representative by the date specified by Cement Australia then they would not be able to have a bargaining representative.
[5] In PR998439, a decision dismissing the ITW Buildex and National Union of Workers Enterprise Agreement 2010, I dealt with a similar set of circumstances to that of this matter and I refused to approve the agreement. My reasons here mirror the reasons I gave in that matter.
[6] The role of bargaining representatives under the Fair Work Act was clearly identified in the Explanatory Memorandum to the Bill.
Division 3 – Bargaining and representation during bargaining
696. Division 3 sets out the rights of employers and employees to appoint a person of their choice as their bargaining representative. It also ensures that each employee is notified of his or her right to representation when bargaining for a proposed enterprise agreement. These rules are adjusted for a proposed enterprise agreement that is a greenfields agreement and for a multi-enterprise agreement in relation to which a low-paid authorisation is in operation.
697. Bargaining representatives have a more significant formal role in the bargaining process compared to bargaining agents under the WR Act. Bargaining representatives are entitled to: bargain for enterprise agreements and depending on the type of agreement will usually be entitled to apply for (among other things) protected action ballot orders, bargaining orders, majority support determinations, scope orders and serious breach declarations. Bargaining representatives are also entitled to represent a person in matters before FWA (see clause 596). As part of their responsibilities, bargaining representatives for a single-enterprise agreement and a multi-enterprise agreement to which a low paid authorisation is in operation are required to meet the good faith bargaining requirements set out in subclause 228(1). Non-compliance with the requirements exposes a bargaining representative to bargaining orders. Division 3 also makes clear that an employer must not refuse to recognise or bargain with a bargaining representative.
[7] Whilst most employees who intend to appoint to a bargaining representative are most likely to do so in the early stages of the bargaining process for an enterprise agreement this is not the only time that an employee can or will appoint a bargaining representative. Issues as to the scope of an enterprise agreement or issues relating to the perceived need for bargaining orders may arise at any time before the agreement is made. The right of employees to appoint a bargaining representative pursuant to s.178 cannot be limited by time constraints imposed by the employer.
[8] Where an employer seeks to include in a NERR additional restrictions or limits (including time limits) upon the rights of employees to appoint a bargaining representative, then the employer has not complied with the requirements of s.173 of the Act. When s.173 speaks of the “right to be represented by a bargaining representative” it means the right to be represented as determined by the Act and not by the employer.
[9] Apart from the general position as described above, the NERR issued in this matter does not meet the specific requirements of s.174 of the Act.
[10] Section 174(6) provides that the Regulations may prescribe matters relating to both the content of a Notice of Employee Representational Rights and/or the form of such Notice.
[11] Regulation 2.05 provides:
2.05 Notice of employee representational rights — prescribed form
For subsection 174 (6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.
[12] Thus the Notice in Schedule 2.1 of the Regulations is prescribed and must be used by an employer in order to comply with both s.173 and 174 of the Act.
[13] The Regulations do not permit the employer to add any additional comments, restrictions, directions, etc to the words prescribed in Schedule 2.1 of the Regulations.
[14] This does not mean that an employer must simply copy Schedule 2.1 and issue it to employees.
[15] The very structure of Schedule 2.1 requires the employer to add essential and prescribed information such as the name of the employer and the name of the enterprise agreement and the proposed coverage of the enterprise agreement.
[16] Also the very structure of Schedule 2.1 requires that the employer may have to delete up to 2 paragraphs of the contents of Schedule 2.1 in circumstances where there is no low-paid authorisation or where no employees are covered by an individual agreement-based transitional instrument.
[17] In the present matter the employer had made the necessary changes to the Schedule 2.1 Notice but had also added a direction which was not permitted nor required by the Schedule 2.1 Notice.
[18] The NERR issued to employees in this matter did not conform to the prescribed form set out in Schedule 2.1 and therefore the employer had not complied with the requirements of s.174 of the Act.
[19] Whilst most employees who intend to appoint to a bargaining representative are most likely to do so in the early stages of the bargaining process for an enterprise agreement this is not the only time that an employee can or will appoint a bargaining representative. Issues as to the scope of an enterprise agreement or issues relating to the perceived need for bargaining orders may arise at any time before the agreement is made. The right of employees to appoint a bargaining representative pursuant to s.178 cannot be limited by time constraints imposed by the employer.
Conclusion
[20] Given my finding that the NERR was not in the form prescribed by the Act, I conclude that a Notice of employee representational rights was not provided to the employees and therefore the procedural requirements of section 181 of the Act have not been complied with and therefore the Agreement cannot be approved. I dismiss the application.
Additional Comments
[21] The following comments are observations I make in relation to the contents of the Agreement. These comments do not form part of the decision in this matter. However, should the Applicant wish to recommence the process of making an agreement with its employees the Applicant may wish to consider the following observations.
[22] I observe that the references to legislation in clause 1.7 are to former Acts and not current Acts.
[23] I observe that whilst clause 2.1(b) of the Agreement provides for part-time employment there is no definition of part -time employment nor are there any of the protections found in clause 10.4 of the Cement and Lime Award 2010.
[24] I observe that clause 2.3 contains in the second paragraph a reference to “Section 57 of the National Employment Standard”. S.57 of the Fair Work Act is not part of the NES and s.57 of the Act would appear to have nothing to do with the subject matter of clause 2.3 of the Agreement.
[25] I observe that clause 2.6 provides a better entitlement to employees than does s.117 of the Act where the employer gives notice of termination to the employee. However, clause 2.6 of the Agreement requires the employee to give a greater period of notice to the employer than the employee would be required to give under s.117 of the Act.
[26] I observe that the last paragraph of clause 2.6 of the Agreement makes reference to two classes of employees which are not mentioned anywhere else in the Agreement, namely, employees engaged by the hour or day and who are not casual employees. How can these two classes of employees be employed under the Agreement if they are not specifically provided for in clause 2.1 of the Agreement.
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