[2012] FWA 1776 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Advanced Foundation Solutions (Aust) Pty Ltd
(AG2012/154)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN |
ADELAIDE, 5 MARCH 2012 |
Advanced Foundation Solutions (Aust) Pty Ltd CFMEU Collective Agreement 2011 - 2014.
[1] On 24 January 2012 Advanced Foundation Solutions (Aust) Pty Ltd (AFS) lodged an application for approval of the Advanced Foundation Solutions (Aust) Pty Ltd CFMEU Collective Agreement 2011-2014 (the Agreement) pursuant to section 185 of the Fair Work Act 2009 (the Act). That application was referred to me for consideration.
[2] On 31 January 2012 I issued preliminary findings wherein I sought advice of the day on which employees were informed of the time and place of the vote and the voting method to be used. A copy of those preliminary findings was forwarded to both the CFMEU and to a nominated employee bargaining representative.
[3] On 2 February 2012 the Master Builders Association of New South Wales (MBA) responded on behalf of its member, ASF, in the following terms:
“As we understand from our member, Advanced Foundation Solutions, the following process was followed to inform employees of the time and place of voting and method of voting to be used:
Monday 19 December 2011
Meeting of all company employees intended to be covered by the agreement took place. At this meeting employees were provided with advice that the Company intended to commence bargaining for a new Enterprise Agreement. Employees were also provided with a Bargaining Agent election form. Employees at this meeting were also advised that it would be the Company’s intention that when a vote would be taken it would be by a show of hands at the future meeting.
Tuesday 3 January 2012
The Company collected employee’s Bargaining Agent election forms and provided all employees with a copy of the proposed Enterprise Agreement. Employees were also messaged that a meeting was planned for Monday 23 January 2012 for a vote to take place to approve the proposed Enterprise Agreement.
The Company advises that a number of discussions were held over the next 2 weeks with employees to clarify and answer questions on various aspects of the proposed Enterprise Agreement.
Tuesday 17 January 2012
All employees intended to be covered by the Enterprise Agreement were sent a text message from the Company reminding them that a meeting is to be held at the Company’s premises at a specified time to vote on the Enterprise Agreement by a show of hands. The CFMEU representative was also invited to attend the meeting and employees were advised of this invitation.
Monday 23 January 2012
The Company conducted the meeting at the time and place specified for employees to hold a vote on the Enterprise Agreement.
All 11 affected employees attending the meeting. All employees were asked and confirmed that they had received a copy of the proposed Enterprise Agreement sent to them on 3 January 2012. All employees confirmed that they had read and understood the terms of the proposed Enterprise Agreement.
At this point, the Company requested that a vote be taken by employees to approve the Enterprise Agreement. A vote was then undertaken with unanimous support in favour of the Enterprise Agreement.”
[4] Attached to this advice was a copy of the advice from the employer to its employees of 3 January 2012 which was in the following terms:
“Update on NSW AFS Employee Enterprise Agreement
....
Previously I provided you with information in accordance with the provisions of the Fair Work Act 2009 (Cth) to inform you that your employer, Advanced Foundation Solutions (Aust) Pty Ltd wishes to negotiate and lodge for approval an employee enterprise agreement to facilitate greater clarity and flexibility in regards to the entitlements and obligations associated with your employment.
In this negotiation some of you wish to represent yourselves and some have nominated the CFMEU to represent themselves, all of which can be accommodated.
Since we met a proposed agreement has been reached with the CFMEU, your copy attached.
In about a fortnight I propose we meet to discuss and agree the Final Agreement, I will co-ordinate this with the CFMEU so all matters can be dealt with at the one time. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.
If you have any questions we strongly encourage you to discuss these matters with myself, your nominated bargaining agent or contact Fair Work Australia on 1300 799 675 or www.fwa.gov.au.
Should you wish to discuss any matter please call me on xxxx xxx xxx. I will also endeavour to visit sites over the next week to assist consultation.
Kind Regards
Advanced Foundation Solutions
Peter Longstaff
Managing Director”
[5] On the information provided to me, I am satisfied that this advice was provided to all the employees but I am not able to conclude that it provided employees with notification of the time and the place of the vote and the voting method to be used. The AFS in the Form F17 filed with the application, advised that this reflected the last Notice of Employee Representational Rights. However, I have not taken it as such a notice. Further, I have noted that a Notice of Representational Rights in the proscribed form was issued on 12 December 2011.
[6] The subsequent advice of 17 January 2012 gave employees only six days notice of the time and place of the vote.
[7] This application was the subject of a telephone hearing on 16 February 2012. Mr Glover of the MBA and Mr Longstaff of AFS appeared, together with employee representatives Mr Antony and Mr Parker. Mr Kelly appeared for the CFMEU.
[8] At this hearing, AFS confirmed that the voting method to be used at a future unspecified meeting was advised to the employees at the meeting held on 19 December 2011. AFS agreed that the 3 January 2012 letter referred to a meeting to be held "in approximately 2 weeks time". 1
[9] At the hearing, I sought advice in the following terms:
“THE SENIOR DEPUTY PRESIDENT: What I’m struggling with then is just when they were told of when and where the vote would be held.
MR LONGSTAFF: Well, I guess my only comment to that is that it’s not precise. On the 3rd I guess we knew – in a sense we said approximately two weeks, not 23 January. Brien or Mitch, do you want to add to - - -
THE SENIOR DEPUTY PRESIDENT: But you must have told people at some point when and where the vote would be held.
MR LONGSTAFF: Yes. The precise knowledge when we did that?
THE SENIOR DEPUTY PRESIDENT: Yes.
MR LONGSTAFF: Is that the question?
THE SENIOR DEPUTY PRESIDENT: Yes.
MR LONGSTAFF: Subsequent to the letter on the 3rd and on the 17th we texted each person individually and advised them about the meeting on Monday, the 23rd, 7 am, to have a vote.
THE SENIOR DEPUTY PRESIDENT: I see.
MR LONGSTAFF: At the same time I advised them that the CFMEU had been invited because I’d had a communication with Andrew Quirk and confirmation from Andrew and at the same time, you know, if they had any further concerns or queries to give me a call. Prior to that I’d seen a number of the guys in the field. So I guess when we gave them the precise time and date was on the 17th on text.” 2
[10] The CFMEU could not confirm to me that it had advised the employees of the time and the place of the vote. The two employee representatives also agreed that they were informed in early January 2012 that a meeting would be held in approximately 2 weeks time and that the exact date was then confirmed on 17 January 2012.
[11] I provided AFS with the opportunity to withdraw the application and repeat the voting process but AFS urged me to adopt a position that the notification requirements set out in s.180 of the FW Act had been effectively satisfied. The CFMEU position was that:
“MR KELLY: Your Honour, we would say that – I’ve heard everything you’ve said in relation to 180 and, from what I can understand, where you’re going to is that if we ask you to consider the application as it is, you’ve got no option but to dismiss the application. Like you’ve said to Mr Longstaff, you’d basically just have to resubmit. My view is that’s probably the quickest and easiest say for all parties because I get the feeling that that’s probably what you’re going to do.
THE SENIOR DEPUTY PRESIDENT: You’re a little ahead of me there. I foreshadowed the degree of difficultly but I haven’t reached a conclusion on that issue.
MR KELLY: I understand. I know that in other matters we’ve had similar issues and the quickest and easiest way to remedy it was to withdraw the application and just do what’s required to advise the workers of a new vote and go down that process.” 3
Findings
[12] In light of the AFS position I have considered whether the Agreement can be approved. This issue is the only potential impediment to approval.
[13] I have noted that there are 11 employees to be covered by the Agreement and that all of the 11 employees voted to approve the Agreement.
[14] Section 180 states:
“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.”
[15] The issue here is whether s.180 represents mandatory requirements which must be satisfied as a prerequisite for approval of an agreement or whether a purposive approach to the requirements of this section can be adopted. There is no argument that employees knew about the time and the place of the vote and participated in that voting process. It is simply the case that there is general agreement that the specified notice of the time and the place of the meeting was not given to the employees before the time specified in s.180(4).
[16] Section 188 states:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[17] There are numerous situations which may arise where there is doubt over compliance with s.180. Full Benches in Bland v Ceva Logistics 4 and National Tertiary Education Industry Union v University of NSW5 have dealt with Fair Work Australia's capacity to be satisfied about compliance with s.180 and the concept of "all reasonable steps" in so far as it relates to the preapproval steps required of an employer. Those decisions establish a degree of latitude available to Fair Work Australia in reaching a conclusion about these issues. They deal particularly with issues relating to the provision to every employee of all of the information identified in s.180 rather than the fundamentals of the actions taken by the employer.
[18] When it is patently clear that the employer's actions do not comply with the mandatory provisions of s.180, the FW Act does not permit Fair Work Australia to overlook such a substantial failure to conform with s.180 on the basis that this did not affect the voting outcome. Whilst it might be entirely logical for the legislation to allow Fair Work Australia to have the capacity to overlook omissions relative to preapproval steps where it is satisfied that these do not alter the voting outcome, the FW Act does not currently permit this. There is simply no legislative licence to ignore the obligations in ss.180 and 188.
[19] In these circumstances, because of the advice provided to me by the employer, the CFMEU and the two employee representatives, I cannot be satisfied that employees were advised of the time and the place of the vote by the start of the access period such that the Agreement can be approved consistent with s.186. The Agreement must be refused approval and the agreement making process repeated.
[20] Consistent with the advice I provided to the parties on 16 February 2012 I am satisfied that in all other respects the Agreement meets the prerequisite requirements for approval, and if a new application in the same terms is referred to me for approval it will be dealt with as expeditiously as possible.
SENIOR DEPUTY PRESIDENT
Appearances:
P Glover Master Builders Association of NSW and P Longstaff representing Advanced Foundation Solutions (Aust) Pty Ltd.
W Kelly on behalf of the Construction, Forestry, Mining and Energy Union NSW Branch.
B Parker and M Antony employee representatives.
Hearing details:
2012.
Adelaide (by phone):
February 16.
1 Transcript PN32
2 Ibid, PN35 - PN44
3 Ibid, PN113 - PN115
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