FWA 7447
REASONS FOR DECISION
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Giovenco Industries (Aust) Pty Ltd
BRISBANE, 31 AUGUST 2012
Giovenco Industries (Aust) Pty Ltd, Rio Tinto Alcan Maintenance Agreement 2012.
 This is a revised and edited version of a decision delivered in transcript on 8 August 2012.
 An application was made by Giovenco Industries (Australia) Pty Ltd for approval of the Giovenco Industries (Australia) Pty Ltd Rio Tinto Alcan Maintenance Agreement 2012 to 2014. Soon afterwards, an email was received from Mr Michael Huddy which stated:
I was a nominated bargaining agent for the proposed Giovenco Industries (Australia) Pty Ltd Rio Tinto Alcan Maintenance Agreement 2012. I have some concerns and wish to be heard on the application to approve the agreement.
 Following the original email, at the first directions conference attended by Mr Huddy and the employer, Mr Huddy raised a number of issues about the process that led to the approved vote on the agreement as well as some content issues. Mr Maurice Swan of the Australian Industries Group represented the employer. He was of the view that none of the matters raised by Mr Huddy about the process or content was a reason for the tribunal not to approve the agreement. As the matter could not be resolved, further directions were made as to the filing of material. On behalf of the employer, statutory declarations were provided by Rhandy Papisan, Aldrine Abdon, Herminigildo Vergabera, who are all employees of the company. Additionally, statutory declarations provided by Mr Geoffrey Allnutt, (who provided two statements), who was the Project Manager; Mr Ken Donaldson, who was working as the Project Manager at the time and Brian Keenan, the General Manager.
 Mr Swan made submissions on 21 June and further submissions on 20 July 2012. Mr Huddy provided a document which referred to meetings held, provided submissions on 28 March and final submissions on 16 July 2012. Additionally, in Mr Huddy's email, he noted that no employees were prepared to sign statements for fear of losing their jobs. He also noted there were 13 redundancies within Giovenco. Having provided extensive material, primarily in the form of submissions to the tribunal, both Mr Swan and Mr Huddy agreed that the matter could be decided on papers. The first matter I need to decide is whether to hear from Mr Huddy. Mr Huddy was appointed as a bargaining representative, although Mr Swan asserts that he no longer represents any employees and is a CFMEU organiser.
 Though this is not a matter I have to decide in relation to the matters raised by Mr Huddy, as I rely on section 590 and consider that having been a bargaining representative for the agreement, it is appropriate the tribunal consider submissions and any evidence from Mr Huddy in relation to this application for approval of the agreement. As I've indicated, so there can be no further delay I have decided to provide oral reasons for this decision and a written transcript should be available within the next couple of days. I now turn to the matters raised by Mr Huddy. In his submissions, Mr Huddy raises a number of matters about the process about which the approval came about. In particular, he considered there was inadequate notice of representation rights and non-compliance with the requisite pre-approval steps as required under the Fair Work Act.
 Mr Huddy noted that the vote on 20 February 2012 was 46 votes yes and 43 votes no. This followed a previously unsuccessful vote in December 2011. Mr Huddy noted that among the workers who voted on 20 February 2012, there were no less than five workers who were recruited from the Philippines on 13 February 2012, commencing work on 15 February 2012. I now turn to the issues raised in this matter.
Notice of representational rights
 Mr Huddy asserts that the five workers who were employed on 15 February did not receive a notice of representation rights at least 21 days prior to the employer requesting that they approve the proposed enterprise agreement under section 173 of the Fair Work Act 2009 (the Act), which I'll refer to as the Act. Mr Huddy submits it follows that the employer did not comply with the pre-approval steps as are required under section 180 subsections (2), (3) and (5).
 In response, the employer contends that it is not required to give the notification of employee rights to an employee who is not employed at notification time. Mr Swan submits that the obligation in section 173 imposes that the employer notify the bargaining representation rights to employees employed at notification time. Mr Swan asserts that any other reading of section 173 would create uncertainty and subjugate the operational business needs to the exigencies of the bargaining process. I note the Full Bench in CJ Mansfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia  FWAFB 3534, where at paragraphs 43 to 47 the Full Bench concluded that the requirement to notify in section 173 arises at notification time and applies only to employees employed at the notification time.
 I agree that the notice of representation rights is only required to be given to employees who are employed at notification time. As that notice was given to those employees employed at the notification time, I have concluded that section 173 requirement to notify has been satisfied. However, Mr Huddy correctly asserts that it is still the case that the applicant must establish that pre-approval steps have been met and therefore whether the employees have genuinely agreed to the enterprise agreement.
 Turning now to the obligations on the employer in relation to those pre-approval steps: these include compliance with section 180 subsection (2), which requires that during the access period the employer must take reasonable steps to ensure that employees employed at the time, who will be covered by the agreement, are given a copy of the written text of the agreement and any other material incorporated by reference into the agreement or relevant employees have access throughout the access period for the agreement to copy of those materials.
 Further, section 180 subsection (3) requires an employer must take all reasonable steps to notify employees by the start of the access period of the time and place at which the vote will occur and the voting method that will be used.
 Mr Huddy submits that given the time at which the Filipino workers were engaged and the date on which the proposed agreement went to vote, sections 180 subsection (2) and (3) have not been complied with by the employer. He referred to the case of MSS Security Pty Ltd  FWA 3687 (MSS Security), where it was held that the use of the term "throughout" means that employees must have access to the material for the whole of the access period and not some point during the access period. Mr Huddy submitted there should have been a reprogramming of the vote so that the Filipino workers will have full and proper access period.
 In response, Mr Swan submits that compliance with sections 180 subsection (2) and (3) and indeed section 180 subsection (5) require a consideration of fairness and practicality. Further, the Act requires an employer provide a meaningful opportunity to identify the terms of the proposed agreement, to understand its effect it will have on the conditions of employment and where and how they will have the opportunity to approve or disapprove of it by voting. Mr Swan highlights that the words in both sections which refer to: The employer must take all reasonable steps - - -.
 Further, that any reprogramming of the vote would require constant monitoring of the recruitment process, which has particular difficulties in remote rosters such as Gove. Mr Swan submitted that in the case of MSS Security, the determination of the word "throughout" in section 180 subsection (2)(a) was not an essential part of the reasoning. Further, the interpretation that employees must have access to the material for the whole of the access period imposes on the employer an absolute, inflexible obligation to the point of tailoring bargaining and approval process specifically around a recruitment process or vice versa.
 While I do not agree that a reprogramming of the vote is a reasonable step to ensure compliance with sections 180 subsection (2) and (3) it is still necessary for the employer to establish they have taken reasonable steps. In deciding whether the employer has taken reasonable steps, I turn to the evidence provided. On the requirements of section 180 subsection (2), Mr Donaldson, who was the relieving Project Manager during the time of the vote, deposes that copies of the agreement have been made available to all employees at the site from 10 February 2012 and that copies of that document remained available to all employees in each crib room until the vote was taken. Further, in the week prior to the vote on the agreement there were six pre-start meetings where Mr Donaldson explained the terms of the agreement to employees.
 Mr Donaldson deposes this included the five new Filipino employees who arrived on site at the beginning of that period. Additionally, he deposes that all Filipino employees have dealt satisfactorily with English language written assessment material such as the job safety environmental assessment and assessments necessary to obtain various permits. The requirements of section 180 subsection (2)(a) are not absolute. The legislature says that the employer must take reasonable steps to provide access to the agreement and any documents and that it be available for seven days. And how is an employer to do so? They are to take reasonable steps to ensure it happens. Mr Huddy says they cannot comply because those who voted were not employees for seven days and therefore the vote should be delayed. Mr Swan says that is an impractical outcome. I agree it is not an absolute requirement, otherwise the words, "reasonable steps" are unnecessary. But it is then a matter of deciding if what has been done are enough to satisfy those reasonable steps.
 In contrast to the decision in MSS Security, I am satisfied that providing a copy of the agreement in the crib rooms, along with the pre-start meeting about the agreement, the employer has taken reasonable steps that will satisfy section 180 subsection (2)(a). As to section 180 subsection (3), I note that the employee, Mr Evandi Papasan, described the process. He deposes as follows:
Giovenco management staff, including the project manager, other managers and supervisors, made efforts to find out whether the workers from the Philippines understood the changes that the agreement would make to their conditions of employment and if the employees did not seem to be aware or understand they explained it to them. They also explained to them that there would be a vote on accepting the agreement and how and when that would happen.
 On the basis of this evidence, I conclude that section 180 subsection (3) has similarly been complied with. Turning to section 180 subsection (5), Mr Huddy raised concerns about the understanding of the Australian Industrial Relations framework and the linguistic capabilities, such that the Filipino workers could plausibly reach genuine agreement with the employer on the proposed enterprise agreement within the set time frame. I raised similar concerns about compliance with section 180 subsection (5) with the employer in the course of the conferences and asked for submissions on this issue. Mr Huddy provided several examples of the employees' limited experience in the Australian legal system and their English language. However, the submissions are in contrast to the material provided by way of sworn statutory declarations from both management and the three senior Filipino employees.
 The statutory declarations from the employer include the following relevant facts to section 180 subsection (5): Mr Brian Keenan, the General Manager, made the following points. The level of fluency most Filipino workers have in the English language is such that they are able to understand what was said by Giovenco management personnel at the meetings. He added to those that did not have such fluency, Filipino workers who are experienced in working in Australian sites and were present at the meetings were in a position to explain if requested to do so by co-workers. He confirmed that there was no written translation of their explanation document into the first language of Filipino workers.
 Mr Keenan annexed to his statutory declaration the following, the offer of employment and a document entitled, "Explanation of the terms proposed for the Giovenco agreement."
 Mr Herminigildo Vergabera deposed specifically on the question of English language capacities of the five employees. He deposed as follows:
In February 2012, five scaffolders from the Philippines started work at Giovenco site a short time before we voted on the agreement. They were all qualified as scaffolders and had worked in other English-speaking countries. Before the vote I talked with each one of them and I learned they can all speak English well.
 I have concluded that the employer has taken reasonable steps to explain the terms of the agreement to these employees. I rely on the following:
● the combination of the statement from Mr Vergabera that the five scaffolders could speak English;
● that they are required to pass written English tests;
● the use of pre-start meetings to explain the agreement; and
● the distribution of the document entitled, "Effect of terms proposed in the document" that was annexed to the statutory declaration of Mr Keenan.
 The employer has therefore taken all reasonable steps to ensure the terms of the agreement and the effect of those terms are explained to relevant employees. Further, that the explanation is provided in an appropriate manner as I've described, taking into account the particular circumstances and needs of relevant employees. I am therefore satisfied that section 180 subsection (5) has been met.
 Having satisfied the requirements of section 180 subsection (2), (3) and (5) and section 181(2) and there being no other reasonable grounds for believing the agreement has not been genuinely agreed to, I have concluded that the enterprise agreement has been genuinely agreed to by the employees covered by the agreement. There are a number of matters that will require undertakings so these agreements will meet the requirements set out in sections 186 and 187. These undertakings are not likely to cause financial detriment to any employee covered by the agreement, nor result in substantial changes to the agreement. As is required under section 190 subsection (4), I note that the tribunal must not accept an undertaking unless the tribunal has sought the views of each person who the tribunal knows is a bargaining representative for the agreement.
 As is the usual process with undertakings, I will request certain undertakings in a separate letter detailing where the agreement does not meet the requirements set out in section 186 and 187. Subject to the employer providing satisfactory undertakings, the agreement will be listed for approval.
M Swan from Australian Industry Group on behalf of the Applicant.
M Huddy as nominated bargaining representative.
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