Able Australia Services T/A Able Australia Services
[2024] FWCA 2772
•29 JULY 2024
| [2024] FWCA 2772 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Able Australia Services T/A Able Australia Services
(AG2024/1453)
ABLE AUSTRALIA (TASMANIA) UNION COLLECTIVE AGREEMENT 2024-2026
| Health and welfare services | |
| COMMISSIONER YILMAZ | MELBOURNE, 29 JULY 2024 |
Application for approval of the Able Australia (Tasmania) Union Collective Agreement 2024-2026
On 30 April 2024 an application was made for approval of an enterprise agreement known as the Able Australia (Tasmania) Union Collective Agreement 2024- 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Able Australia Services T/A Able Australia Services (the Applicant or Employer). The Agreement is a single enterprise agreement. It is proposed that this agreement replaces the Able Australia (Tasmania) Union Collective Agreement 2021 where its nominal expiry date of 23 March 2022 has passed.
Having reviewed the Agreement, the application and accompanying materials, the Commission identified a number of issues requiring response. Additionally, in their Form F18, The Health and Community Services Union (HACSU) which is the Tasmanian Branch of the Health Services Union and union bargaining representative, raised a number of issues relating to the Employer’s Form F17A Declaration contending that the Agreement contained less beneficial terms, but HACSU otherwise supported approval of the Agreement.
In relation to the better off overall test, these issues were resolved following a conference between the parties and undertakings provided by the Applicant.
Notification time and access to the Agreement
The remaining issues raised by the Commission regarded the notification of the time, place, date and method of the vote was provided with less than 7 clear days prior to the commencement of the vote, and whether the Employer took all reasonable steps to give employees a copy of the Agreement during the access period or provided it by the start of the access period.
The F17A identifies the notification time as Wednesday 3 April 2024. Materials in the application demonstrate that the vote opened on Monday 8 April and closed on Tuesday 16 April 2024. It was after the Commission sought an explanation for the failure to provide at least 7 clear days of the notification that HACSU then objected to approval of the Agreement.[1]
In relation to this issue, the Commission received a copy of the email[2] sent to employees eligible to vote, containing information about the Agreement and the details for the vote to be conducted by CiVS- an independent voting service.
All eligible voters were notified of the time, place and date in a CiVS letter dated 2 April 2024 and voting channels included online, phone, and SMS. This letter was sent by email and included information on how to vote plus a username and voter exclusive PIN number. I observe that this letter provided a link to the supporting documents for the Agreement. In addition, I observe that all employees with a mobile phone received a text message asking to vote either yes or no for the Agreement by way of reply.
On 5 April 2024 a further email was sent to all staff titled “information sessions for Tasmanian Collective Agreement.” This email was a reminder to vote from 8-16 April and included frequently asked questions and the detail for information sessions held twice daily until 15 April 2024. On the same day CiVS sent to all eligible voters their login details, reminded them of the access period and provided instructions on how to vote.
A further reminder on 8 April 2024[3] was sent to employees advising that the voting period was open. Another reminder to vote was sent on 11 April 2024[4] emphasising the voting close date of 16 April 2024.
A copy of the communications plan[5] was also submitted with detailed information about the activities, locations and personnel in attendance and to communicate information on the new agreement, voting process and to answer questions. I observe that the identity of the HACSU representatives in attendance are included in the plan. This plan includes activity in addition to the information sessions from 6am 8 April to 6am 16 April 2024. Information was provided to employees by both online and in person meetings. A copy of the PowerPoint information session was submitted together with the Form F17A.[6]
CiVS conducted the vote of employees. The declaration of result prepared by CiVS dated 16 April 2024, identifies 308 eligible voters, of which 221 voted and 87 abstained. The yes vote was a clear majority with 209 voting in support and 12 against. The final vote count was at 9.05am AWST 16 April 2024.
The Objections
The HACSU submits that the review by the Commission identified two defects in the pre-approval process:
1. Employees were not provided with 7 clear days’ notice of the time, place and method of vote; and
2. Employees were not provided with a copy of the Agreement for the duration of the access period.
On the basis of the 2 defects, it submits that the Agreement has not been ‘genuinely agreed’.[7] It submits that the employer did not comply with the requirements of s.180(2) and (3) of the Act, that it did not take all reasonable steps, if any to ensure that the employees were provided with copies of relevant materials (the agreement) for the duration of the access period and because the Applicant did not take all reasonable steps to comply with an access period of 7 clear days, means that the agreement cannot have been genuinely agreed.
Further HACSU submit that with respect to s.180(3) of the Act, that while the Act does not require compliance in absolute terms, whether the employer took all reasonable steps is an objective assessment of the steps.[8] In particular HACSU submits that the Applicant’s position that it just did not comply with 7 days and employees were unlikely to be prejudiced does not meet the reasonable steps test. Finally, it submits that notice of the vote occurred during the access period, therefore as s.180(3) has not been complied with, the Commission is not able to approve the agreement.[9]
HACSU contend that noncompliance with s.180(3) is a technical error, but it disagrees with the Applicant that it is minor; it submits the error is absolute, that the Applicant failed to take reasonable steps to comply with the Act and because employees were denied an access period and access to the agreement for a period of 7 days, employees were deprived of the opportunity to read the agreement for the relevant period.[10]
The Applicant concedes that 7 days’ notice was not given, instead 4 days’ notice of the voting period was given. It also submits that within the 4 days of access, employees were given a copy of the proposed Agreement, an extensive communication plan was rolled out and access to the documentation occurred on 3 April 2024.[11]
The Applicant also relies on Huntsman,[12] but submits the decision made a number of statements concerning genuinely agreed in the context of the mandated approval process.[13] It submits that a distinction is to be made between an intentional and unintentional act resulting in noncompliance and the circumstances regarding the noncompliance. A lower-level noncompliance is considered a minor error, assessment of whether employees were disadvantaged may involve considering the conduct of the employees including the number that voted for the agreement, and that the purpose of s.180(3) is to ensure relevant employees participated in the voting process.
On the matter of the technical error of not providing 7 clear days, the Applicant submits this is a minor error and referred to a number of decisions where agreements were approved without strict compliance with the 7 days.[14]
The Applicant further raised circumstances that point to and should satisfy the Commission of the agreement being genuinely made. Without listing all of the factual circumstances, the Applicant referred to the active role played by HACSU, the strong voter turnout and lack of complaint or concern raised about the shorter period, the public celebration by HACSU on learning of the positive vote and absence of any evidence of disadvantage, hardship or prejudice for employees.[15]
The legislative framework
As the notification time for this agreement is 14 March 2023, the repealed ss 180(1) – (4) of the Act applies. The relevant now repealed s.180 of the Act follows:
“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).”
Consideration - notification time and access to the Agreement
The purpose of the repealed s.180 of the Act was to ensure that the employer took all reasonable steps during the access period to provide employees with copies of relevant materials, including the agreement, and it took steps to notify employees by the start of the access period the time, place and method of vote. The access period was defined as 7 days.
The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 made amendments to the Fair Work Act 2009, one being to s.188 (also now repealed) which provided a mechanism for the Commission to conclude that an agreement was genuinely agreed within the meaning of s.186(2)(a) of the Act, despite minor procedural or technical errors. The new s.188(2) came into effect as a result of the amendments.
The Full Bench in Huntsman considered the application of the amendment in relation to s.188(2). Subsections 188(1) and (2) is to be considered sequentially. Relevantly the repealed s.188 is as follows:
“188 When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC 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.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”
HACSU submits that the Applicant had not met s.180 (2) and (3) in the pre-approval steps. There is no dispute over s.181(2), 182(1) or 182 (2) and there are no other reasonable grounds raised to question whether there is genuine agreement.
In this matter the Commission cannot be satisfied of genuine agreement pursuant to s.188(1), therefore s.188(2) is to be considered. Subsections 188(2) (a) and (b) allows for minor procedural or technical errors in relation to ss.180(2) and (3) without affecting genuine agreement, if employees were not likely to have been disadvantaged by the errors. Section 188(2) is to be considered in terms of the circumstances regarding access period and provision of the agreement. The Commission may conclude that the agreement was genuinely made having made an evaluative judgement that the agreement was genuinely agreed, if not for the error, and employees were not disadvantaged by the error. This judgement calls for regard to the purpose of the relevant procedural or technical requirement.
Huntsman identifies the purpose of s.180(2) to ensure employees are given a reasonable opportunity to make an informed decision, and the purpose of s.180(3) is to give employees the opportunity to choose to attend and participate in the voting process.
A range of decisions since the amendment to s.188 have dealt with the matter of an access period of less than 7 clear days consistent with the principles of Huntsman.[16]
The facts of this matter which are relevant to this evaluative judgement are that on 3 April 2024 all employees received an email from the Applicant notifying them of the access period, the dates of the vote, the method of vote and notification that CiVS is an independent voting service engaged to manage the vote, that CiVS will email staff on 5 April with details on how to vote and a further reminder on commencement of vote will be emailed. In addition, correspondence from CiVS to all staff dated 2 April 2024 provides details on the 3 options on how to vote, when the vote opens and closes and who to contact for further information on the content of the agreement. The subsequent email to all staff on 5 April contained a copy of the agreement, a reminder of the vote opening on 8 April until 16 April 2024, and a list of 12 online information sessions over 6 days that staff can select from to register attendance for the duration of the voting period.
It is relevant that employees had access to the agreement during the access period, therefore the only issue is whether the 4 days rather than 7 days is detrimental to a finding of genuine agreement. It is relevant that this agreement replaces a previous agreement. Agreement making is not new to this enterprise where HACSU is the only bargaining representative. The form F17 was not challenged in so far as the composition of the workforce or other matters relating to genuine agreement; I observe there is no obvious workers likely to be disadvantaged in the process. I also observe that the NERR was distributed broadly by email, placed in the workplace together with a personalised letter to all employees on 21 March 2024. Bargaining was efficient with arrangements for the vote after what appears to be a short bargaining process. Further from a total of 308 eligible employees to vote, 221 participated in the vote with 209 voting in favour. This represents a clear majority, and the turnout presents no issues of concern.
HACSU submit that the Commission cannot be satisfied of genuine agreement, however, no evidence came before the Commission to challenge the circumstances relating to voter cohort, communications, voter turnout and strong majority yes vote. Further there is a clear absence of evidence that employees did not have an opportunity to make an informed decision or were prevented from participating in the vote.
I do not agree that the 7 days is absolute, rather the now repealed s.188(2) is relevant to the consideration of genuine agreement in terms of ss.180(2) and (3). The access period of less than 7 days may be a minor procedural error and the circumstances in this matter in my judgement is a minor procedural error, further there is no evidence to find that employees covered by the agreement were likely to have been disadvantaged. On the contrary the strong vote in support is evidence of employees exercising their right to vote for the agreement.
Thus, HACSU’s objections to the approval of the agreement are dismissed.
Other matters
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. The NERR contained a different title for the Agreement to the one noted above. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(2) of the Act.
The Health Services Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
The Agreement is approved and in accordance with s.54, will operate from 5 August 2024. The nominal expiry date of the Agreement is 1 June 2026.
COMMISSIONER
Annexure A
[1] Email from J. Milligan dated 5 June 2024.
[2] Dated 3 April 2024.
[3] SMS sent from CiVS at 6.00am AEST on 8 April 2024.
[4] SMS sent from CiVS at 9.00am AEST on 11 April 2024.
[5] Appendix D to the Form F17A.
[6] Appendix C to the Form F17A - People and Culture Information Session Presentation.
[7] Respondent’s Written Submissions, at [3].
[8] HACSU relied on Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc (2013) 251 IR 366 at [29].
[9] Respondent’s Written Submissions, at [15] – [16].
[10] Ibid, at [17] – [20].
[11] See Email to all staff, dated 3 April 2024.
[12] Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 (“Huntsman”), at [73], [79]. [115] and [117].
[13] Applicant’s Written Submissions, at [15] – [18].
[14] Applicant’s Written Submissions, at [20] – [23].
[15] Ibid, at [24].
[16] See McCrae Consultancy Group Pty Ltd [2021] FWCA 3012; and Drilltech Pty Ltd Exploration Drilling Employee Collective Agreement 2018-2021 [2019] FWCA 2394.
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