Application by Volvo Group Australia Pty Ltd

[2011] FWA 4050

[2011] FWA 4050

FAIR WORK AUSTRALIA

DECISION

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

Application by Volvo Group Australia Pty Ltd
(AG2011/9560)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 21 JULY 2011

Application for approval of the Volvo Group Australia Retail Enterprise Agreement 2011 - application refused.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 20 May 2011 by Volvo Group Australia Pty Ltd for the approval of a single-enterprise agreement known as the Volvo Group Australia Retail Enterprise Agreement 2011 (“the Agreement”).

[2] The question at paragraph 2.1(a) of the Form F17 initiating this application reads, “Was a notice of representational rights complying with s.174 given to each employee who will be covered by the agreement in accordance with s.173?” The Applicant answered “No” to this question, and further stated that representational rights were discussed at a meeting of the negotiating committee.

[3] Section 173 of the Act requires that an employer must take reasonable steps to give notice of the right to be represented by a bargaining representative to each employee. Section 173 of the Act relevantly reads as follows:

173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

[4] Section 174 of the Act is set out relevantly below, and it indicates the content of the notice of representational rights:

174 Content of notice of employee representational rights

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.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before FWA that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

[...] Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).

[5] Section 176 of the Act, which provides for employees to be self-represented or represented by a person other than the default bargaining representative, reads relevantly as follows:

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

[...]

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement; [...]

(4) Employee may appoint himself or herself

To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.”

[6] Discussing (alone) the issue of representational rights at a meeting of the Negotiating Committee does not meet the above mandatory statutory requirements for the approval of the agreement.

[7] There appears to have been no notice given whatsoever, let alone to each employee, that illuminated issues such as the right to be self represented or to appoint a person (other than a default bargaining representative) as a bargaining representative. Nor was there an effort to provide the notice, such as by way of placing a copy on a usual notice board or otherwise communicating (in an abridged but effective manner) the notice and its required content so that the representative structure of negotiations emerged from the statutory opportunities for representation provided by the Act.

[8] Section 181(2) of the Act requires that the “request (for approval) 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”. On the basis of the information available to me, the requirement in s.181(2) of the Act has not been met.

[9] Section 186(2)(a) of the Act provides that in order to approve an agreement, Fair Work Australia must be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement.

[10] Pursuant to s.188(a)(ii) of the Act, employees have genuinely agreed to an enterprise agreement if Fair Work Australia is satisfied that the employer covered by the agreement complied with s.181(2) of the Act (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).

[11] On the material before me, I cannot be satisfied that the employees genuinely approved the agreement.

[12] In those circumstances, approval of the Agreement is refused.

[13] It is apparent to me that the reasons for the Applicant’s conduct was that it was distracted at the critical times by business interruptions. The momentum towards the ballot therefore fell out of synchronisation with efforts to ensure the process conformed with the Act.

[14] The employer has provided information at a hearing that it will implement the terms of the agreement as an instrument of a kind other than an enterprise agreement approved under the Act.

SENIOR DEPUTY PRESIDENT

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