DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Oakmoore Pty Ltd T/A EGR Extrusion
(AG2019/3563)

Application for approval of the EGR Extrusion Enterprise Agreement 2019 – Changes to NERR – Failure to comply with requirements of s173 – Changes not minor procedural or technical errors – Commission cannot be satisfied the employees covered were not likely to be disadvantaged – Agreement not genuinely agreed – Application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the EGR Extrusion Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Oakmoore Pty Ltd. I dismissed the application at the conclusion of a hearing earlier today giving brief oral reasons and advised the parties I would provide more fulsome written reasons later in the day. These are those reasons.

[2] The Agreement is a single enterprise agreement. The Applicant provided with its Form 16 application and Form 17 statutory declaration a copy of the Notice of Employee Representational Rights (NERR). In the Form 17 statutory declaration, Mr Turnbull, the Human Resources Officer for the Applicant, states that the NERR was posted on the notice board on 1 March 2019.

[3] Section 174(1) and (1A) of the Fair Work Act 2009 read as follows:

“Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations”

[4] The NERR provided by the Applicant departs from the NERR as contained in Schedule 2.1 regulation 2.05 of the FW Regulations in important respects.

[5] Firstly, the NERR is on the Applicant’s letterhead. The first paragraph of the NERR appears uncontroversial, except for the fact that the proposed coverage of the NERR is “Extrusion Line Employees at the EGR Extrusion: Wacol site” and does not stipulate as stated in the Form F17 that the agreement only applies to shiftworkers. This may give rise to a question as to whether the group was fairly chosen; however, given my conclusions below, it has been unnecessary to reach a conclusion on that matter.

[6] The NERR provided to employees has deleted the paragraph as contained in the regulations that reads as follows:

“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your bargaining representative.”

[7] The NERR provided to employees has also changed the last paragraph as it appears in the regulations. The paragraph in the regulations reads as follows:

“If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.”

[8] The last paragraph in the NERR provided to employees reads as follows:

“If you have any questions about this notice or about enterprise bargaining, please speak to the HR Department or your bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission”.

[9] Underneath the last paragraph in a larger bold font the following words appear:

“Please fill in the nomination form attached”

[10] Attached to the NERR was a table with four columns and a series of rows which identified each employee by name with a number appearing next to it, and with a column providing an option for a name to be filled in by each employee nominating a fellow employee as their bargaining representative. I have recreated below a version of the contents of the table excluding the completed fields.

“I, as an employee who falls under the scope of the EBA nominate:

[11] The second column of the table listed the names of 21 employees. Under the heading of ‘Name of Employee Nominated’ the employees nominated either one or both of two fellow employees who are identified on the Form F16 as the employee bargaining representatives Mr Faumui and Mr Ricco, and in the fourth ‘Employee Signature’ column each employee signed the table next to the nominated representatives.

[12] I listed the matter for hearing on 24 October 2019. Mr Turnbull appeared on behalf of the Applicant and Mr Faumui and Mr Ricco also appeared as the two employee bargaining representatives.

[13] In the course of the hearing I explained the requirements of s.174 of the FW Act and also explained the power in s.188(2) which provides a means to find an agreement has been genuinely agreed despite minor and technical errors.

[14] Mr Turnbull confirmed that the NERR provided with the application was the NERR distributed to employees including the attached table. He said the NERR was given to the employee representatives Mr Faumui and Mr Ricco who had been employee representatives for the last agreement, and also left the NERR in one of the rooms for the employees to look at and sign.

[15] I invited Mr Turnbull to make a submission as to why I could still approve the agreement given the changes to the NERR, including whether the changes could be regarded as minor procedural or technical errors and whether employees were not likely to have been disadvantaged by the errors.

[16] I also asked Mr Turnbull to explain why he changed the NERR in the manner he did. Mr Turnbull answer that there was no union and the Applicant didn’t have a union. He also submitted that Mr Faumui and Mr Ricco had been the bargaining representatives for the last agreement.

[17] I asked Mr Turnbull about the words at the bottom of the notice and the attached table. Mr Turnbull accepted that the table attached to the NERR did not contemplate an employee nominating anyone as a bargaining representative other than another employee of the Applicant.

[18] I explained that s.188(2) provided a capacity for the Commission to approve the Agreement despite changes to the NERR. I invited Mr Turnbull to make a submission as to why the agreement could still be approved. Mr Turnbull said a similar format had been followed for previous agreements and there was no union, and the Applicant had worked with the same group of employees for the last 10 to 15 years.

[19] I invited both Mr Faumui and Mr Ricco to make any submission they wished to in regard to whether the changes could be regarded as minor procedural or technical errors and whether employees were not likely to have been disadvantaged by the errors.

[20] Mr Faumui said a few employees under the EBA over the years had mentioned the union and had questioned whether they could get a union. Mr Ricco said employees had made mention of getting involved with the union but felt pressure from the Applicant and did not really know where they stood with that. Mr Ricco said he had been at the company for 20 years and he thought it was the policy of the company not to have a union. These submissions did not support a conclusion that employees were not likely to have been disadvantaged by the changes to the NERR.

[21] A Full Bench of the Commission in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others included the following;

“[141] The copy of the NERR lodged by the employer with its application for approval of the agreement omitted from the NERR the paragraph relating to the union’s role in the bargaining process.

[142] The purpose of this paragraph is to inform the employee that, if they are a member of a union, their union will be their bargaining representative unless they appoint another person or revoke the union’s status. This is a core requirement of the NERR, prescribed by section 174(3) of the Act. Subject to a consideration of the relevant circumstances, such as those referred to in paragraph [77] above, it is unlikely that a failure to include this paragraph in a NERR could constitute a minor technical error.”

[22] The changes made to the NERR in this case go well beyond examples of the types of issues concerning a NERR that could fall within the meaning of minor technical errors as discussed in Huntsman. The exclusion of the paragraph relating to a union’s role in this matter is clearly not a minor or technical error.

[23] There was no union involvement in the bargaining for this agreement in circumstances where it appears queries had been raised about having union involvement previously and there was a perception amongst employees that this was discouraged. In the circumstances the exclusion from the NERR of the paragraph pertaining to union representation has even greater significance than it already would ordinarily have in the context of potential for disadvantage.

[24] Added to that issue is the effect of the inclusion of the attached table which appears to have the effect of attempting to herd all employees toward a position that the only bargaining representative that it is open for them to nominate is one of their fellow employees.

[25] Whilst it is unnecessary for me to address them in detail in this decision, I can indicate that there were a range of significant BOOT and other issues concerning this application that the Commission would have raised had it been necessary to so. I cannot be satisfied that employees were not likely to have been disadvantaged by the NERR.

[26] I cannot be satisfied of either of the requirements of s.188(2)(a) or (b) and therefore cannot be satisfied the agreement was genuinely agreed. On that basis the application is dismissed.

COMMISSIONER

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