AFL Telecommunications Australia Pty Ltd

[2014] FWC 7300

[2014] FWC 7300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AFL Telecommunications Australia Pty Ltd
(AG2014/9327)

COMMISSIONER RYAN MELBOURNE, 16 OCTOBER 2014

Application for approval of the AFL Telecommunications Australia Pty Ltd and National Union of Workers Enterprise Agreement 2014.

[1] Application was made on 9 October 2014 by AFL Telecommunications Australia Pty Ltd (the Applicant) for approval of the AFL Telecommunications Australia Pty Ltd and National Union of Workers Enterprise Agreement 2014 (the agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The employer’s declaration in support of approval (Form F17) declared by Ms Powell, the Human Resources Manager, identified that on 16 September 2014 each employee was provided with a hard copy by hand or a soft copy by email of the Agreement, a Summary of Changes document, a Voting Notice and a Ballot Paper.

[3] The Voting Notice contained the following information about the voting process:

“THE VOTING PROCESS

The approval process will entail a secret ballot. A Ballot Paper will be provided to you with the hard copy of this Voting Notice (and a hard copy of the Agreement) when you attend for your next shift. It is important that you do not lose the Ballot Paper once it is given to you. You must not lose the Ballot Paper as we cannot give you a replacement ballot Paper. You must not copy the Ballot Paper. Only original Ballot Papers will be counted.

Your Ballot Paper will only be valid if it is completed and placed in the ballot box as instructed below.

The ballot box will be open for voting between 5pm on Wednesday 24 September 2014 and 8.30am on Friday 26 September 2014.

To complete your Ballot Paper, simply tick one box on the Ballot Paper enclosed and place it in the ballot box located between Bora & Steve's desk (Production Supervisors) between 5pm on Wednesday 24 September 2014 and 8.30am on Friday 26 September 2014. If you want to approve the Agreement, you need to tick "Yes". If you do not want to approve the Agreement, you need to tick "No.

Do not complete the Ballot Paper before 24 September 2014. You must place your Ballot Paper in the ballot box yourself.

Ballot Papers will not be counted if they are lodged before the ballot box opens or after it closes.

The ballots will be counted after 8.30am on Friday 26 September 2014.

As long as the majority of valid votes received are "YES", then the Agreement will be 'approved' and AFL will lodge it with the Fair Work Commission.

If you have any questions about the Agreement, the voting process or anything else, please feel free to contact Melissa on [redacted] .”

[4] As is clear from the Voting Notice, ballot papers were issued to employees on 16 or 17 September 2014.

[5] I have considered the procedure implemented by the employer in light of the requirements of the Act.

[6] Sections.180, 181 and 182 of the Act deal with the making of enterprise agreements. These sections provide as follows:

“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.

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

182 When an enterprise agreement is made

Single enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi enterprise agreement that is not a greenfields agreement

(2) If:

(a) a proposed enterprise agreement is a multi enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(c) those employees have voted on whether or not to approve the agreement; and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).”

[7] The language of these three sections of the Act leads me to conclude that the Applicant has not complied with the requirements of the Act and that the enterprise agreement has not been made in accordance with the provisions of the Act.

[8] Section180(1) provides that an employer cannot request employees to vote on an enterprise agreement until the employer has undertaken three actions, namely:

• giving a copy of the enterprise agreement and any material incorporated into the agreement to employees (s.180(2)(a)),
• providing access to a copy of the agreement and any material incorporated into the agreement for a defined period (s.180(2)(b)), and,
• notifying employees of the time and place of the vote and voting method that will be used (s.180)(3)).

[9] Each of these three actions has to occur within a set time. The requirement specified in s.180(2)(a) must occur sometime during the “access period”. The requirement specified in s.180(2)(b) must occur throughout the “access period”. The requirement specified in s.180(3) must occur before the start of the “access period”.

[10] The “access period” is defined in s.180(4) as being “the 7 day period ending immediately before the start of the voting process referred to in subsection 181(1).”

[11] The emphasis in the definition of “access period” is not on the actual commencement of the vote, nor on the conclusion of the actual vote, but is expressed more generally to include the “voting process referred to in subsection 181(1).”

[12] It appears from the structure of Division 4 of Part 2-4 of the Act that there is a difference in meaning between the term “voting process” and the actual commencement or conclusion of the vote of employees. This is readily seen by comparing the language of subsections 182(1) and (2).

[13] In s.182(1) an agreement is made when a majority of employees approve the agreement. The making of the agreement occurs in a technical sense at the conclusion of the vote even if the voting process has not been completed. Thus if the voting process contains a detailed procedure for the counting of votes and the formal declaration of the results of the vote the enterprise agreement is not made at the conclusion of the declaration of the vote, which may be sometime after the close of the vote but rather is made as at the date of the close of the ballot. This is so because whilst it may take some time to count and declare the vote, the enterprise agreement is made “when a majority of those employees who cast a valid vote approve the agreement”, and, all that the count and declaration have done is to confirm that as at the close of the ballot a majority of those employees who cast a valid vote approved the agreement.

[14] In the case of a multi-enterprise agreement s.182(2) provides for a different time at which the multi-enterprise agreement is made. A multi-enterprise agreement is made “immediately after the end of the voting process referred to in subsection 181(1)”. The emphasis on the end of the voting process reflects the fact that in a multi-enterprise agreement there may be some enterprises where the vote went against approval of the agreement and some where the vote was to approve the agreement. In such a case the multi-enterprise agreement is only made in relation to those employers whose employees approved the multi-enterprise agreement. The voting process itself may include different start and finish times for the votes of employees at different enterprises. Thus the emphasis is placed upon the end of the voting process as the appropriate time to determine if the multi-enterprise agreement is made.

[15] As both sections 180(4) and 182(2) refer to “the voting process referred to in subsection 181(1)” that term must have the same meaning in both sections. S.180(4) refers to the start of the voting process and s.182(2) refers to the end of the voting process. However the language of s.181 does not refer to a voting process but only to a request by the employer.

The term “voting process” as used in s.180(4) and s.182(2) is reference to the employer requesting the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

[16] Whilst the term “voting process” is not defined the term should be given its ordinary meaning.

[17] ‘Process’ is defined in the Macquarie Concise Dictionary to mean:

“a systematic series of actions directed to some end”.

[18] The term “voting process” as used in s.180(4) and s.182(2) must include the systematic series of actions by which an employer initiates the request for employees to approve the agreement by voting on it, carries out the request for employees to approve the agreement by voting on it and determines the outcome of the request for employees toapprove the agreement by voting on it. This must be so as the end of the process is to determine whether or not the employees approve the agreement.

[19] I note that s.180(3) requires the employer to take all reasonable steps by the start of the access period to notify relevant employees of both the time and place at which the vote will occur and the voting method that will be used. This requirement to give early notice to employees of what will occur does not detract from what constitutes the “voting process referred to in subsection 181(1)”.

[20] Whilst it is not necessary to detail every likely action that would comprise the systematic series of actions directed to having employees vote to approve an enterprise agreement, it would appear obvious that at least two of the actions would include the distribution of voting material to the employees and, where the vote is by postal ballot, the distribution to employees of the means to return their votes.

[21] As identified in paragraphs 2 and 3 above the employer had at the very least commenced the “voting process’ on 16 or 17 September 2014 by sending to employees the covering letter for the vote and the ballot paper.

[22] The access period as defined by s.180(4) was therefore the 7 day period ending immediately before the 16 September 2014.

[23] Section 180(2)(a) required that the employer take all reasonable steps to ensure that during the 7 day period ending immediately before the 16 or 17 September 2014 that employees were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement. As the employer declares in the Form F17 the material required to be given to employees at least 7 days before the 16 or 17 September 2014 was not in fact given until the 16 or 17 September 2014.

[24] Similarly it is clear from the Form F17 that there was also non compliance with s.180(2)(b) and 180(3).

[25] The employer has not complied with the requirements of s.180(2)(a), 180(2)(b) and 180(3) of the Act. Non compliance with any one of ss.180(2)(a), 180(2)(b) or 180(3) means that the employer could not, because of s.180(1), make a request under s.181(1) to employees to approve the agreement and thus the employees could not make the agreement by voting for it under s.182.

[26] Therefore there is no valid application before the Commission. I dismiss the application.

[27] I make the comment that, if not for the deficiency outlined above, the Agreement would have been approved by me.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR556649>