| [2018] FWCA 1460 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
ATCO Structures & Logistics Pty Ltd
(AG2017/4847)
ATCO STRUCTURES & LOGISTICS PTY LTD (QUEENSLAND) ENTERPRISE AGREEMENT 2017
Manufacturing and associated industries | |
COMMISSIONER SIMPSON |
BRISBANE, 12 MARCH 2018 |
Application for approval of the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2017.
[1] On 13 October 2017, ATCO Structures & Logistics Pty Ltd (the Applicant) made an application for approval of an enterprise agreement known as the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).
[2] The Agreement is a single-enterprise agreement. The Agreement was made on 26 September 2017, and was signed on that day by Mr Glen Parsons, Senior Manager Corporate Compliance on behalf of the Applicant. The Agreement was signed by Mr Rick Longman, an employee bargaining representative on 4 October 2017 and filed with the Fair Work Commission (FWC) on 13 October 2017.
[3] On 24 October 2017 Mr Ashley Borg, the Senior Industrial Officer of the Construction, Forestry, Mining and Energy Union Queensland and Northern Territory Branch (CFMEU) sent correspondence to the FWC Member Assist Team submitting that it had a material interest in the application and advising the CFMEU wished to make submissions in relation to the application.
[4] The CFMEU requested copies of the material filed and this was sent to the CFMEU on 30 October 2017. On the same date the Member Assist Team noted that the CFMEU was not listed as a Union Bargaining Representative on the Form F16 filed by the Applicant, and requested that the CFMEU advise whether the CFMEU was a bargaining representative for the Agreement.
[5] On 10 November 2017 Mr Maurice Swan, Manager, Queensland – Workplace Relations of the Australian Industry Group sent correspondence on behalf of the Applicant to the Member Assist Team enquiring as to whether the CFMEU had provided a response to the FWC correspondence of 30 October, and if so whether the CFMEU asserted it was a bargaining representative for the Agreement, and seeking an opportunity to provide further information and submissions in relation to such CFMEU response. The Applicant advised it was not aware of any information that would provide the CFMEU with any reasonable basis for claiming that it was a bargaining representative for the Agreement.
[6] On 20 November 2017 the Member Assist Team wrote to the Applicant advising that no further correspondence had been received by the CFMEU at that time. Later that day the CFMEU sent correspondence to the Member Assist Team simply stating it was a bargaining representative for the Agreement, and apologising for the delay in responding.
[7] On the following day, 21 November 2017 the CFMEU wrote to the Member Assist Team advising that it wished to make submissions in relation to the application, and also stating in its email that the Notice of Employee Representational Rights (NERR) was technically non-compliant rendering the application incapable of approval. The email did not identify how the CFMEU said the NERR was non-compliant. The CFMEU requested it be advised whether the Commissioner wishes to consider the application any further, or whether submissions would be necessary.
[8] On 22 November 2017 the Applicant wrote to the Member Assist Team disputing the assertion that the CFMEU was a bargaining representative. The Applicant requested that the FWC examine the basis upon which the CFMEU asserted that it was a bargaining representative in order to determine whether the claim was true.
[9] The Applicant submitted that firstly, the FWC require the CFMEU to disclose to the FWC (but not to the Applicant) a list of persons who, between 14 August 2017 and 15 September 2017,
• Were members of the CFMEU; and
• Were entitled to have their industrial interests represented by the CFMEU; and
• Were employees of ATCO who would be covered by the Enterprise agreement which is the subject of this application.
[10] The Applicant proposed the FWC require ATCO to disclose to the FWC (but not to the CFMEU) a list of persons who, between 14 August 2017 and 15 September 2017,
• Were employees of ATCO who would be covered by the Enterprise Agreement which is the subject of this application; and
• Did not appoint a bargaining representative.
[11] The Applicant submitted that, unless there is at least one person whose name appears on both lists, the CFMEU were not, and is not, a bargaining representative for the Enterprise Agreement.
[12] On 17 January 2018 the Member Support Research Team wrote to Mr Glen Parsons, Senior Manager Corporate Compliance employed by the Applicant setting out a range of issues concerning the application. Set out below is a summary of those issues and responses received.
[13] On 19 January 2018 the Member Assist Team wrote to the CFMEU advising that the matter had been allocated to Commissioner Lee for consideration. The correspondence said that upon review of the application documentation the Commissioner highlighted a concern that the Applicant had noted the CFMEU was not at any stage a bargaining representative and requesting that the CFMEU provide clarification as to why it maintained it was in fact a bargaining representative. The correspondence advised that the Commissioner requested a response by no later than the close of business Tuesday 23 January 2018.
[14] On 25 January 2018 the CFMEU sent correspondence to the Member Assist Team advising that it has members that would be covered by the Agreement, and it followed that the CFMEU was a default bargaining representative of those employees.
[15] On 31 January 2018 the Member Assist Team sent correspondence to the CFMEU thanking the CFMEU for its email, and advising “we would expect to have further information for you regarding this matter soon. Please let us know if you require any further information”.
[16] The undertakings were signed by Mr Parsons as an authorised representative of ATCO. The Applicant also forwarded a revised Form F17 signed by Mr Parsons and dated 30 January 2018. The matter was listed for a Directions Hearing on 14 February but adjourned to 21 February 2018.
[17] An application must be lodged within 14 days after the agreement is made. The Form F17 filed with the application on 13 October 2017 states that the Agreement was made on 26 September 2017, meaning that it was filed later than as required by s185(3)(a). Subsection 185(3)(b) states that if in all of the circumstances the FWC considers it fair to extend that period – within such further period as the FWC allows.
[18] On 22 January 2018 the Applicant wrote to the FWC in response on this issue advising that despite being requested to return the signed Agreement promptly, the employee authorised to sign the Agreement on behalf of the employees did not return the signed Agreement until after signing it on 4 October 2017. At that point, and until 13 October 2017, there was no authorised company officer available to complete and sign the Form F16 and Form F17.
[19] At question 2.3 of the Form F17 filed on 13 October 2017 the Applicant did not provide the steps taken to give the NERR ‘Notice’ to the employees covered by the Agreement. Section 173 of the Act and Schedule 2.1 of the Fair Work Regulations 2009 require the employer covered by the enterprise agreement to take reasonable steps to give notice of the right to be represented by a bargaining representative to each employee. The Applicant was asked to explain how the notice was ‘issued’ to employees.
[20] The Applicant advised in its correspondence of 22 January 2018 to the FWC that a copy of the NERR was, on 16 August 2017, provided directly to each of the employees whom it was intended would be covered by the proposed Agreement. The Applicant said that this was done by the Branch Managers in the company depots in Townsville, Mackay, Gladstone and Brisbane and at the Brisbane assembly and manufacturing facility. This information was provided in the revised Form F17.
[21] At question 2.5 of the Form F17 filed on 13 October 2017 the Applicant did not provide any information with regards to the steps taken to notify employees of the time, place and method of vote by the start of the access period. Section 180(3) of the Act requires that the employer must take all reasonable steps by the start of the access period to notify the relevant employees of the time and place at which the vote will occur and the voting method to be used. On the basis of the information provided, it does not appear that this requirement has been met. The Applicant was requested to provide a revised correctly signed Form F17 with the correct date incorporated at question 2.5 for the purposes of assessing whether the legislative requirement had been met.
[22] In its correspondence of 22 January 2018 to the FWC the Applicant advised that on 7 September 2017, the employer provided directly to each employee to be covered by the proposed Agreement a memorandum informing them that the voting on the Agreement would take place by postal ballot commencing on 15 September 2017. That was done by the Branch Managers in the community depots in Townsville, Mackay, Gladstone and Brisbane and at the Brisbane assembly and manufacturing facility. This information was also provided in the revised Form F17.
[23] At question 2.2 of the original Form F17 the Applicant provided no information in reference to the coverage of employees in the Agreement. Section 186(3) of the Act requires that if the Agreement does not cover all of the employees of the employer, then the Fair Work Commission must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
[24] In its correspondence of 22 January 2018 to the FWC the Applicant advised that the classification descriptions set out in Clause 13 of the Agreement indicate the site-based or yard-based operational nature of the work performed by the employees intended to be covered by the Agreement, as opposed to the administrative, supervisory or managerial nature of the work performed by all other company employees in Queensland.
[25] The Applicant said that the coverage of the Agreement was limited to employees working in Queensland because the labour market is different from that in other States in a number of respects, including the level of demand for labour in respect of the occupations covered, and the general level of wages paid in such occupations. This information was also provided in the revised Form F17.
[26] At question 2.8 of the original Form F17, the date the last Notice was provided to employees is stated to be 16 August 2017. However at question 2.4 on the Form F17, the Agreement was provided to employees on or before 7 September 2017. It was put to the Applicant in correspondence from the FWC that the Applicant notes at question 2.3 that employees were covered by the Agreement, but that it cannot be determined how the employees knew they were covered by the Agreement if they had not received the Agreement. Further, that the Agreement was provided to employees almost three weeks after the notice.
[27] The Applicant was advised that if either or both of the dates are incorrect, that it should provide a revised Form F17 with the correct dates incorporated at question 2.8 and questions 2.4 to 2.6 for the purposes of assessing whether this legislative requirement has been met.
[28] The Applicant responded in its correspondence of 22 January 2018 by referring to subsection 173(1) of the Act. The Applicant said that by giving the employees the NERR on 16 August 2017, it was clearly indicating to those employees to whom it gave the NERR that they would be covered by the Agreement the Applicant was proposing and for which it had earlier (14 August 2017) informed them it was proposing to bargain. The Applicant submitted that the only possible conclusions an employee who received the NERR could reach from the terms of the NERR are that:
• The employer was intending that the Agreement it was proposing to bargain for would cover each of those employees; and
• Each of those employees had a right to appoint a bargaining representative.
[29] The Applicant submitted that if an employee received the NERR, they could not possibly have any reasonable doubt that the employer was proposing that the Agreement would cover them.
[30] The Applicant further submitted that, in any event when, on 14 August 2017, it indicated to the employees its intention to bargain for an Agreement, it provided the employees with a draft version of the Agreement it proposed, titled “ATCO Structures and Logistics Pty Ltd Queensland Enterprise Agreement 2017”. That draft set out a description of the employees covered by the proposed Agreement. The NERR given on 16 August 2017 refers to a proposed Agreement titled “ATCO Structures and Logistics Pty Ltd Queensland Enterprise Agreement 2017”. That is, the employees had received a draft of the proposed Agreement informing them of the coverage of the proposed Agreement 2 days before they had received the NERR. This information was also provided in the revised Form F17. I am satisfied the response provided resolves this concern.
[31] On 17 January 2018 the Member Support Research Team wrote to the Applicant noting that at clause 14.4 the minimum hourly rate of pay incorporates all the Award loadings and allowances, however the Agreement does not appear to provide crib time or meal allowance. Therefore as the Agreement rates of pay are similar to the award, employees working overtime will be worse off under the Agreement. The Applicant was offered an opportunity to provide an undertaking to address this issue.
[32] The Applicant responded in its correspondence of 22 January 2018 by stating that while the point in the correspondence from the Member Support Research Team is titled “Rates of Pay” the real issue raised is that “the agreement does not appear to provide crib time or meal allowance” and suggests that, in overtime scenarios, employees may be worse off, in the context of a suggestion that “the agreement rates of pay are similar to the award”.
[33] The Applicant submitted that the Manufacturing Award hourly wage rate for a C13 is $18.81. For a L1, the Agreement equivalent classification, the hourly wage rate is $29.67 – more than 39% higher. The Applicant submitted that it is inaccurate to suggest that “the agreement rates of pay are similar to the award”.
[34] The Applicant submitted that nevertheless, the employer is prepared to give an undertaking that it will increase the hourly wage rates for ordinary hours of work by 50 cents per hour for each classification in order to eliminate any risk that there may be a circumstance in which an employee may not be better off overall under the Agreement than under the Award. The Applicant provided a table demonstrating the effect of that increase.
[35] On 17 January 2018 the Member Support Research Team wrote to the Applicant noting that clause 14.4(h) of the Agreement provided the minimum hourly rate of pay incorporates all the Award loadings and allowances including, but not limited to industry Specific Redundancy Scheme. The Applicant was advised that the Commissioner (Commissioner Lee) sought an undertaking that clause 14.4(h) of the Agreement have no effect, and further the Commissioner sought an undertaking that the Industry specific redundancy scheme as per clause 17 of the Building and Construction General On-site Award 2010 to be incorporated into the Agreement for the relevant employees.
[36] The correspondence from the Member Support Research Team also advised that the Applicant seek the views of all bargaining representatives regarding the proposed undertakings, and any objections to the proposed undertakings should be raised with the Commission prior to the approval of the Agreement.
[37] The matter was reallocated from Commissioner Lee to myself. On 9 February 2018 the Applicant forwarded undertakings to my chambers on behalf of the Applicant as follows;
“ATCO Structures & Logistics Pty Ltd (“ATCO”) undertakes to the Commission that, in interpreting and applying the ATCO Structures and Logistics Pty Ltd (Queensland) Enterprise Agreement 2017 it will
(1) Interpret and apply the table set out in Clause 14.1 as though the second column in that table provided for hourly wage rates that are 50 cents per hour higher for each classification; and
(2) Interpret and apply the provisions of Clause 14.4 as though paragraph (h) was omitted from those provisions.
ATCO has sought the views of all bargaining representatives in relation to the above undertakings and none of them has expressed any objections.”
[38] The matter was listed for a directions hearing on 22 February 2018. Following the directions hearing I issued directions advising that the matter was listed for hearing on 8 March 2018, and further that the CFMEU was to file with the Commission, and serve on the Applicant by 4pm Tuesday 6 March submissions as to whether it should be heard and identify matters it wished to heard on, and an outline of its objections to the approval of the Agreement.
[39] No material was filed by the CFMEU by 6 March. At 11.36 AM on 7 March the Applicant sent email correspondence to my chambers stating that as the CFMEU had not served any material the matter should proceed with consideration of the application without hearing from the CFMEU. At 11.38am the CFMEU responded by email advising it hoped to file materials by close of business and apologising for the delay.
[40] At 3.19pm the CFMEU sent email correspondence to my chambers noting the concerns already raised by the Commission in its correspondence of 17 January 2018 and further adding that the NERR in the matter was non-compliant insofar as it is incorrectly headed “Fair Work Regulations 2009 – Schedule 2.1”. The CFMEU referred the Commission in particular to the paragraphs 46 and 47 of the Full Bench decision in Peabody Moorvale Pty Ltd v CFMEU 1 (Peabody) which read as follows;
[46] In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity. We agree with the Minister’s submissions on this point, that is:
“a mandatory template is provided in the Regulations. The provisions make it clear that there is no scope to modify either the content or the form of the Notice other than as set out in the template.”
[47] Taking into account the considerations identified in Project Blue Sky we have concluded that the legislative purpose of s.174(1A) is to invalidate any Notice which modifies either the content or form of the Notice template provided in Schedule 2.1 of the Regulations….”
[41] On 8 March 2018 several hours before the hearing the Applicant sent email correspondence to my chambers stating that the CFMEU outline of objections was late, and that the CFMEU had failed to comply with the Direction to provide submissions as to whether it should be heard. The Applicant submitted that the CFMEU had forgone its opportunity to be heard by failing to file and serve material as directed and therefore should no longer be heard.
[42] At the commencement of the hearing on 8 March the CFMEU submitted it was content to confine its submissions to matters concerning the validity of the NERR. I granted the CFMEU permission to be heard on that basis.
[43] The Applicant referred to three cases in support of its submission that the notice as issued was valid. The Applicant referred to a decision of Deputy President Asbury in Falcon Mining Pty Ltd 2, a decision of Commissioner Cambridge in DP World Brisbane Pty Ltd3 and a Full Federal Court decision in Shop Distributive and Allied Employees Association v ALDI Foods Pty Ltd4.
[44] In the Falcon Mining matter Deputy President Asbury found that an error in the fields of the NERR in respect of the name of the employer and the name of the Agreement amounted to minor typographical errors that did not render the NERR invalid. Deputy President Asbury included in her reasons that there was no evidence that the employees were misled about the coverage of the Agreement or the identity of the employer party who was proposing to make the Agreement. 5
[45] In the DP World Brisbane matter Commissioner Cambridge found an incorrect date in the title of the agreement referred to the NERR is not a matter that represents a material change to the form and content prescribed by the NERR and did not invalidate a NERR, 6 however went on to find the issuing of the NERR on the Employers letterhead had the effect of altering the character of the document to the extent that it was invalid.7
[46] In SDA v ALDI the judgement of Jessup J expressed the view that it would not have been in error jurisdictionally to have read s 174(1A) as permitting a reference to “leader” instead of “employer”. 8 Katzmann J disagreed with that view9 and White J did not express a concluded view on the matter.10
[47] The CFMEU’s submission without repeating it, in short rested on the authority in Peabody.
[48] In a Full Bench decision in KCL Industries Pty Ltd 11 the circumstances in that matter involved the first paragraph of the NERR having been restructured into two separate sentences. The Full Bench described that particular change as being arguably a triviality with which s.174(1A) might not be concerned. However the Full Bench did not make a formal finding on the point in that matter as it was unnecessary to do so given the NERR was invalid for other reasons.
[49] A later Full Bench decision dealing with three separate decisions to approve three separate enterprise agreements each involving the Maritime Union of Australia 12 referred to the decision in the SDA v ALDI matter and concluded the proper course on the facts of the matters before it was to follow Peabody.13 However that matter was concerned with the insertion of an incorrect telephone number. The Full Bench said as follows;
“[101] …..Even if the requirement for strict compliance still allowed some capacity for errors of an entirely trivial nature to be overlooked (the possibility of which was adverted to by Jessup J in Aldi at [49] and by the Full Bench in KCL at [17]) we do not consider that the defect in the NERR’s here could be characterised as trivial for the reason we have given.”
[50] The issue that arises does not do so from the words used in the body of the notice, as those words conform to the legislative requirements. The NERR was not issued on a letterhead or with a logo of any kind. The issue raised is that the following words in capital letters and bold type appear at the head of the notice “FAIR WORK REGULATIONS 2009 – SCHEDULE 2.1”.
[51] Those words appearing as a heading above the notice would not have the potential to mislead employees in relation to the proposed Agreement. It would appear the presence of the words has no effect in relation to the notice. It does not in any material way change the form and content prescribed by the NERR. I am satisfied that the inclusion of the words at the head of the document are so trivial as to fall within the ambit of the circumstances contemplated by Jessup J in Aldi at [49] and by the Full Bench in KCL at [17]. On that basis I am satisfied that the notice is valid.
[52] I am satisfied in all of the circumstances it is fair to extend the period for filing and have determined to do so. I am also satisfied by the Applicant’s responses and the amended Form F17 in relation to the issues set out above including the steps taken to provide the NERR, notification of the vote, coverage of employees, the time between the issuing of the NERR and the Agreement being made. I accept the undertakings offered and on the basis of those undertakings I am satisfied that the Agreement satisfied the BOOT.
[53] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.
[54] The Agreement is approved and will operate in accordance with s.54 of the Act.
COMMISSIONER
4 [2016] FCAFC 161.
5 [2016] FWC 5315 at para [133].
6 [2016] FWC 385 at para [8].
7 [2016] FWC 385 at paras [11] to [13].
8 [2016] FCAFC 161 at para [49].
9 [2016] FCAFC 161 at para [70].
10 [2016] FCAFC 161 at para [176].
11 [2016] FWCFB 3084 at [17].
13 [2017] FWCFB 660 at [98].
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