Application DJ Swag Pty Ltd T/A Video Ezy Beerwah and anor

[2010] FWA 4418

[2010] FWA 4418

FAIR WORK AUSTRALIA

DECISION

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

Application DJ Swag Pty Ltd T/A Video Ezy Beerwah and anor
(AG2009/21645),(AG2009/21696),(AG2009/22448),(AG2009/22450),(AG2009/22496), (AG2009/23748),(AG2009/23812),(AG2009/23816),(AG2009/23821),(AG2009/23828), (AG2009/23832),(AG2009/23841),(AG2009/23857),(AG2009/23871),(AG2009/24686), (AG2009/24687),(AG2009/24698),(AG2009/24700),(AG2009/24753),(AG2009/24756), (AG2009/24800),(AG2009/24801),(AG2009/24802)

(AG2010/4557),(AG2010/4807),(AG2010/5102),(AG2010/5107),(AG2010/5112), (AG2010/5189),(AG2010/5208),(AG2010/5211),(AG2010/5213),(AG2010/5229), (AG2010/5250),(AG2010/5254),(AG2010/5268),(AG2010,5303),(AG2010/5334), (AG2010/5354),(AG2010/5356),(AG2010/5410),(AG2010/5413),(AG2010/5415), (AG2010/5416),(AG2010/5417),(AG2010/5419),(AG2010/5420),(AG2010/5421), (AG2010/5422),(AG2010/5423),(AG2010/5428),(AG2010/5430),(AG2010/5432), (AG2010/5433),(AG2010/5434),(AG2010/5437),(AG2010/5438),(AG2010/5440), (AG2010/5442),(AG2010/5488),(AG2010/5614),(AG2010/5657),(AG2010/5666), (AG2010/5819),(AG2010/5821),(AG2010/5823),(AG2010/5830),(AG2010/5831), (AG2010/5833), (AG2010/5837)

COMMISSIONER ASBURY BRISBANE, 15 JUNE 2010

Application for approval of various single enterprise agreements.

[1] These proceedings relate to a number of applications to Fair Work Australia (FWA) for approval of enterprise agreements. The applications are made under the Fair Work Act 2009 by the National Retail Association (NRA) and have been allocated to me for determination. All of the agreements follow a template with some adjustments made to take into account the types of enterprises concerned and their location. Essentially the agreements are in identical terms.

[2] On 31 March 2010, I conducted a hearing into twelve applications for approval of agreements to cover various retailers trading as Donut King in Queensland and New South Wales. At that hearing I posed a number of questions about the Agreements relating to the pre-approval processes conducted by the various employer parties as detailed in Statutory Declarations filed in support of the Agreements and about various terms of the Agreements. The NRA requested some time to respond to those questions.

[3] On 22 April 2010 I conducted a hearing into twelve applications for approval of agreements to cover various operations trading as Eagle Boys Pizza in Queensland and New South Wales. At that hearing I posed a number of questions, in virtually identical to terms to those posed at the hearing of 31 March 2010. The NRA requested some time to respond to those questions. Between 31 May and 2 June 2010, applications filed by the NRA for approval of various agreements to cover Cardeaux; Boost Juice; Nextra; Civic Video and various other retail employers, were listed for hearing on 4 June 2010. At 3.26 pm on 3 June 2010, correspondence was forwarded by the NRA in the following terms (Exhibit 1):

Commissioner Asbury

Fair Work Australia

Level 14, Central Plaza Two

66 Eagle Street

Brisbane Qld 4000

3 June 2010

Dear Commissioner

RE: Matters involving the National Retail Association Ltd

It has become apparent that many matters in the retail and service sector, both in relation to the approval of agreements and other proceedings, are being assigned to you for hearing.

The National Retail Association Ltd (NRA) considers that it would be open to a fair- minded observer to entertain a reasonable apprehension that your involvement and decisions in proceedings involving NRA could be affected by bias against the NRA.

This reasonable apprehension of bias arises from the decisions of the Industrial Court of Queensland in C2008/40, C2008/43 and C2008/44, and in the substantially different approach you have adopted in relation to agreements lodged by NRA compared to that adopted by SDP Hamberger, SDP Richards, DP Hamilton, DP Sams and Commissioners Foggo and Rafaelli in respect of agreements in very similar or identical terms.

For this reason, we respectfully request that you recuse yourself from all current and future matters involving the NRA.

Regards

Gary Black

Executive Director

The Bias Argument

[4] At the hearing on 4 June 2010, Mr Moore appeared on behalf of the NRA, and the following exchange took place. Given that the brevity of the submissions, they are set out in full below.

THE COMMISSIONER: Thank you. Mr Moore, I'd listed the matters to deal with the applications for approval of a number of agreements and that was my intention and I have spent considerable time going through them so I'd be ready for today's hearing, and also I'm conscious that obviously you want your agreements dealt with, or those of your members, but I have received some correspondence from Mr Black late yesterday afternoon, or under the signature of Mr Black, requesting that I recuse myself from all current and future matters involving the NRA. Obviously it's not the usual course of action that I would simply do so on the basis of a piece of correspondence, so perhaps you might like to address me on the matters that are raised in the correspondence.

MR MOORE: Thank you, Commissioner. My instructions don't go a great deal beyond those issues raised in the correspondence. My instructions are that the NRA considers that as a result of the proceedings in the Queensland Industrial Court and the decisions of the President referred to in that correspondence relating to obviously quite a separate jurisdiction and set of events involving the trading hours matter in the Queensland jurisdiction, that the outcome of those decisions is such that it would be open to a fair-minded observer that a reasonable apprehension of bias may be entertained in relation to your involvement with matters involving the NRA.

My instructions are further that the approach adopted by yourself in dealing with the agreements that have been assigned to you is substantially different to that adopted by other members of Fair Work Australia as identified in that correspondence, and that the difference in approach perhaps is in the view of the National Retail Association some confirmation of that apprehension of bias that may apply.

THE COMMISSIONER: Could you enlighten me as to the details of my different approach, Mr Moore?

MR MOORE: In terms of matters that have been heard by other members, the agreements have generally been approved with undertakings in terms of the proposed hours - sorry, the preferred hours clause, and little or no other undertakings being required in the case of some matters before Hamberger SDP, I understand the agreements were approved in the form as filed.

THE COMMISSIONER: Can you give me details of those matters?

MR MOORE: Sorry, I don't have the actual agreement numbers with me.

THE COMMISSIONER: Okay. As far as I'm aware, Mr Moore, are you relying on the fact that I've conducted two hearings, one on 31 March 2010 and one on 22 April 2010 at which I've posed a number of questions on the transcript?

MR MOORE: Those are my instructions, Commissioner.

THE COMMISSIONER: Right. Am I to understand that your submission is the fact that I have asked questions on 31 March 2010 and 22 April 2010, which I note I have yet to receive the courtesy of a response to, that the simple fact that I have asked a number of questions about the agreements that were before me in those matters is the basis of your contention that I have a substantially different approach from other members of Fair Work Australia?

MR MOORE: Those are my instructions, Commissioner, yes.

THE COMMISSIONER: Just so we're clear, that is your submission.

MR MOORE: Yes.

THE COMMISSIONER: There's nothing you want to add to that.

MR MOORE: No, Commissioner. That's - - -

THE COMMISSIONER: Can I take it that your submissions go to all of the matters that were listed on 31 March and 22 April 2010?

MR MOORE: Those are my instructions, yes.

THE COMMISSIONER: Okay. And that the only response that the NRA is prepared to give to those matters is the letter from Mr Black dated 3 June 2010.

MR MOORE: No, I wouldn't take it to that extent, Commissioner. The response to the concerns that you identified in both of those hearings are being addressed currently.

THE COMMISSIONER: But you've asked me that I recuse myself from all matters, Mr Moore, so what would be the purpose of addressing responses?

MR MOORE: In the event that you choose to continue to hear those matters, Commissioner.

THE COMMISSIONER: Right. Okay. There's no further submissions you want to make.

MR MOORE: Not on that point, thank you, Commissioner.

THE COMMISSIONER: Was there any submission on any other point?

MR MOORE: No, thank you, Commissioner.

THE COMMISSIONER: All right. Well, I can indicate that I will consider the matters that are raised, perhaps do you want to tender Mr Black's letters so at least I have some detail on the record.

MR MOORE: Yes, thank you, Commissioner, may it please.

THE COMMISSIONER: Okay, we'll mark that as exhibit 1. I have a copy of it here, a letter dated 3 June 2010 received by email at 3.26 pm on 3 June 2010.

EXHIBIT #1 LETTER FROM MR BLACK DATED 03/06/2010, RECEIVED BY EMAIL ON 03/06/2010

THE COMMISSIONER: All right. Thank you for that, Mr Moore. I'll adjourn.

MR MOORE: Thank you, Commissioner.

Case Law

[5] As I understand it the submission of the NRA in these proceedings does not allege actual bias on the part of the Tribunal as presently constituted. However, the submissions do not make this clear. The test to establish an apprehension of bias is helpfully set out in the decision of the Industrial Court of Queensland referred to by the NRA as follows:

“…to establish an apprehension of bias the NRA is required to establish no more than that a reasonable person in the NRA’s position might reasonably apprehend that an alleged source of bias might (not would) possibly (not probably) have affected the decision…” 1

[6] The test has also been expressed as “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” 2

[7] However, the NRA has raised the “approach” I have adopted in dealing with applications by the NRA for approval of enterprise agreements. This suggests actual bias or bias of the kind dealt with in Reg. v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd 3. In that case an allegation of bias was brought against the delegate of a statutory board charged with holding an inquiry to decide whether the registration of an employer in the stevedoring industry should be cancelled. Bias was alleged on the basis of statements the delegate made in a conversation with a newspaper reporter, that the employer’s lax supervision was the reason that an inquiry was being held. The Court held that:

“...when bias of this kind is in question, as distinguished from bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected to fairly discharge his duties. Bias must be ‘real’. The officer must have so conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.” 4

[8] The NRA has requested that I “recuse” myself from dealing with current and future matters involving the NRA. As I understand the submission the NRA is seeking that I disqualify myself from further dealing with current applications for approval of agreements and all future applications involving the NRA.

[9] Essentially the grounds advanced by the NRA are:

• The decision of the Industrial Court of Queensland in C/2008/40, C/2008/43 and C/2008/44; and

• The “substantially different approach” I have adopted in relation to agreements lodged by the NRA, in comparison to that adopted by other members of Fair Work Australia.

The Decision of the Industrial Court of Queensland

[10] The decision of the Industrial Court of Queensland referred to by the NRA is a matter of public record, and is published in the Queensland Government Industrial Gazette at Volume 190 at pages 63 to 80. I do not intend to discuss that decision except to the extent that it is necessary to understand the present argument advanced by the NRA.

[11] Essentially it dealt with appeals by the NRA against decisions of full benches of the Queensland Industrial Relations Commission (QIRC), in relation to trading hours in regions which can be described as Mackay, Bargara and the Gold Coast. The full benches in question were separately constituted by a combination of four members of the QIRC. One member of the QIRC sat on all three of the full benches. I sat on the benches which dealt with the Mackay matter and the Bargara matter.

[12] The Mackay full bench refused an application by the NRA for extended trading. The NRA appealed that decision to the Industrial Court. The Gold Coast full bench and the Bargara full bench adjourned applications by the NRA for extended trading in those areas, to await the outcome of the Mackay appeal. The NRA alleged apprehended bias against two of the members of each of the Bargara and Gold Coast full benches. The allegation was made against me as a member on the Bargara full bench. President Hall upheld appeals by the NRA against the decisions to adjourn both matters on grounds of apprehended bias.

[13] Following the Decision of President Hall in the abovementioned appeals, I was allocated to and sat on a full bench dealing with an application by the NRA for extended trading hours in Gympie and surrounding areas (TH/2009/2). The decision in relation to that matter which was released on 17 November 2009 granted part of the NRA’s application, 5 and refused another part on that application. There was no objection taken by the NRA to me sitting on that full bench.

The agreement approval applications

[14] There are 70 applications by the NRA for approval of agreements allocated to me. At the hearings on 31 March and 22 April 2010, I raised issues with the NRA in relation to the pre-approval processes as documented in Form F17 filed with each agreement, and the substantive terms of the agreements. I intended to raise the same or substantially similar concerns with the agreements listed for hearing on 4 June 2010. Details of these issues are set out below.

[15] In each of the agreements subject of these proceedings, the Form F17 “Employer’s Declaration in Support of the Approval of Enterprise Agreement” appears to have been prepared as a pro-forma document so that the person making the declaration can simply hand write relevant information into the document. I am generally concerned about the extent to which each employer has completed the declaration, because some of the answers have been provided by means of a computer symbol in a box; some have been typed as a proforma for relevant dates to be inserted; and others have been handwritten. This indicates the possibility that the form has been partly completed by the employer lodging the agreement and partly by the NRA as bargaining agent. This is not in itself a problem that would prevent approval of the agreements. However, it does indicate in some cases at least, that the person who signed the form may not have understood the significance of the information it was providing. This is particularly so, given the errors and omissions found in many of the declarations.

[16] In each case I have concerns about the responses to certain questions in the Form F17 which go to what are generally described as pre-approval steps associated with whether employees have genuinely agreed to the terms of an enterprise agreement. Read in conjunction, s. 186(2)(a) and s. 188(a)(i) provide that employees are taken to have genuinely agreed to the terms of an enterprise agreement where the employer has complied with s. 180(2), (3) and (5) of the Fair Work Act 2009. Those provisions are:

180 Employees must be given a copy of a proposed enterprise agreement etc.

..............

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.

…………

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.

[17] Form F17 in questions 2.3, 2.4 and 2.5 requires employers to specify steps taken to comply with these requirements. This is the basis upon which FWA may be satisfied that the requirements have been met. Question 2.3 is in the following terms:

“2.3 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to ensure that the relevant employees were given, or had access to, the written text of the agreement including any material incorporated by reference in the agreement.”

[18] This question is clearly designed to address the requirements of s. 180(2) of the Act.

[19] The formulaic response to the question given by each employer party is:

“The employer met with the employees on ------------ where they were given access to the proposed agreement”

[20] Each employer has handwritten a date upon which the meeting occurred. The response to this question does not provide information about the actual steps that each employer took to provide access to the proposed agreement. Further the agreements incorporate material by reference – see for example clauses dealing with entitlements to long service leave and parental leave. The response in each case, does not address the steps that were taken to comply with the requirement to provide a copy of the relevant provisions, or access to a copy of provisions incorporated into the agreement by reference, to employees before they voted to approve the agreement.

[21] Question 2.4 of the Form F17 asks the employer to specify the steps taken at least 7 days before the start of the voting process, to notify relevant employees of the time and place at which the vote is to occur and the voting method to be used. Each employer has responded to that question in the following terms:

“The employer met with the employees on ----------- where they were notified in writing that the vote would take place in the store starting at ----------and finishing at ----------- on --------------.”

[22] Each employer has inserted dates and times. In no case is it indicated that employees were informed of the voting method. Question 2.5 of the Form F17 requests the following information:

“2.5 Please specify the steps taken by the employer to explain the terms of the agreement, and the effect of those terms to relevant employees?

Note: Your answer must include information on the manner in which the explanation took account of particular circumstances and needs of the relevant employees (for example where the employees were from a non-English speaking background, were young employees, or did not have a bargaining representative).”

[23] Each of the employers has responded as follows:

“The employer held a meeting with the employees on -------- where they were advised that the proposed agreement was in very similar terms to the applicable NAPSA. They were advised to read through the document carefully and if they had any concerns or questions to contact the employer as soon as possible.”

[24] It is arguable that this statement is inaccurate. The proposed agreements are not in “very similar terms” to the applicable Notional Agreement Preserving State Award (NAPSA). The proposed agreements differ from the applicable NAPSAs in a number of significant respects including:

• A provision enabling employees to nominate and work “preferred hours” at ordinary rates where such hours would be paid for at overtime or penalty rates under the terms of the relevant NAPSA;

• The agreements specify different minimum and maximum periods of engagement for part time and casual employees than the relevant NAPSA;

• The agreements require medical certificates or statutory declarations for each day of personal leave, while the relevant NAPSA does not require this evidence until a certain number of days of such leave have been taken; and

• Provisions of the relevant NAPSA or the NES entitling employees to be represented in consultation about change or redundancy are not found in the agreements.

[25] A number of employers who made the declaration set out above, did not include the correct title of the relevant NAPSA in response to question 3.1 (although the title can be deduced from the information provided) and a number of employers stated that there was no applicable NAPSA notwithstanding that they also declared that they had informed employees that the proposed agreement is in “very similar terms to the applicable NAPSA” 6.

[26] It is also the case that none of the agreements provide any basis for increases in wages over their entire four year term. Essentially the agreements stipulate wage rates from the applicable NAPSA and provide no mechanism for those wage rates to increase over the term of the Agreement. By virtue of s. 57 of the Fair Work Act 2009, a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to their employment. Section 206(3) of the FW Act provides that if an enterprise agreement applies to an employee and a modern award does not cover the employee then the base rate of pay payable to the employee under the enterprise agreement must not be less than the national minimum wage.

[27] The agreements prescribe a variety of wage rates, and some of the wage rates prescribed are in excess of the national minimum wage while others are below the national minimum wage. The effect of the terms of the agreement will be that some employees will be entitled to increases in their wage rates during the life of the agreement while others may not, or will not be entitled to wage increases until the national minimum wage exceeds their wage rate under the agreement. The standard response of employers to the question of whether the terms of the agreement, and the effect of those terms have been explained to employees, makes no reference to these matters. It is arguable that a proper explanation of the terms of the agreements and the effect of those terms would have dealt with this issue.

[28] A significant number of the declarations indicate that all required pre-approval steps were taken on the same day, so that simultaneously employees:

• were told that the employer intended to make an agreement with them;

• were given access to a copy of the proposed agreement;

• were given the notice of representational rights under s. 173 of the Act;

• received an explanation of the terms of the agreement to the effect that it was in very similar terms to the NAPSA, and that they should read the document carefully and contact the employer if they had concerns or questions; and

• were told that a vote on the agreement would take place in 21 days time. 7

[29] In some cases, questions about how many employees to be covered by the agreement; how many employees cast a valid vote; and how many employees voted in support of the agreement have not been completed. In some cases the numbers of employees who cast a valid vote are significantly less than the total number of employees to be covered by the agreement. 8

[30] Question 3.1 asks the employer to identify all relevant awards or NAPSAs to be used for the purposes of the no disadvantage test. As noted above, a significant number of employers have failed to answer question 3.1 or have provided incorrect information. Question 3.3 of the form F17 asks:

“Does the Agreement contain any terms and conditions of employment that are less beneficial than any of the terms and conditions of the reference instruments identified in questions 3.1 or 3.2;

[31] Each employer has checked the box to indicate that the answer to this question is no. For the reasons set out below it is arguable that this answer is incorrect. Further, as previously indicated, where employers have failed to nominate a reference instrument, I can only wonder at how this question could have been answered at all.

[32] Section 185(3)(a) of the FW Act provides that an application for approval of an enterprise agreement must be made within 14 days after the agreement is made. Section 185(3)(b) confers a discretion on FWA to extend time. By virtue of item 15, Schedule 7 of the Fair Work Transitional Provisions and Consequential Amendments Act 2009 the power to extend time does not apply in relation to agreements made during the period of fourteen days before the end of the bridging period. Thus if an agreement was made in the period from 18 to 31 December 2009, FWA must refuse an application to approve the agreement. There are number of agreements which appear to have been made in the period from 18 to 31 December 2009, and which were filed outside of the fourteen day time limit. 9

Terms of agreements

[33] The Agreements are broken into sections. The section numbers are generally illegible on the copy as filed. Each paragraph is numbered and some of the numbering differs although the agreements are essentially identical. I will refer to the provisions about which I have questions, by subject matter. Each of the agreements has a clause dealing with the commencement and nominal expiry date in the following terms:

“This agreement will commence on the seventh day after being declared by Fair Work Australia as having passed the No Disadvantage Test. The agreement’s nominal expiry date will be four years from the day it commences.”

[34] Section 186(5) of the Fair Work Act 2009 (the Fair Work Act 2009) provides that:

“Requirement for a nominal expiry date etc.

FWA must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which FWA approves the agreement.

[35] Section 54 of the Fair Work Act 2009 provides that an enterprise agreement approved by FWA operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day.

[36] The effect of the clauses dealing with commencement and nominal expiry date is that the agreements will specify a nominal expiry date that is more than four years after the date on which the agreement is approved.

[37] The agreements provide a system termed “preferred hours” which allows for employees to work at nominated times and to be paid the basic rate of pay, notwithstanding that employees may otherwise have received an additional amount for working those hours. Voluntary hours are implemented by the employee completing an “election of preferred hours” form which is a schedule to each agreement. The effect of these provisions is that employees who work preferred hours would not be paid penalty rates for public holidays, weekends and overtime.

[39] The agreement clauses dealing with hours of work for part-time and casual employees differ variously from relevant NAPSA provisions:

• in some cases there are no minimum hours for casual employees on a weekly or a daily basis;

• in some cases there are no maximum weekly hours for part-time employees;

• in some cases there is a daily spread of hours between which ordinary hours may be worked and in others there is not.

[40] The annual leave provisions do not require employees to be given notice before being directed by the employer to take annual leave at a particular time. NAPSAs, nominated as reference instruments, typically provide for employees to be given some period of notice before being directed to take annual leave. There is a requirement for employees to provide a medical certificate or statutory declaration where it is not reasonably practicable to provide a medical certificate, for all absences of any duration. Typically NAPSAs nominated as reference instruments allow some minimum period of personal leave without such documentation.

[41] Each agreement provides that parental leave entitlements will be “as per the Act” and long service leave in accordance with “relevant state legislation”, without specifying the source of the entitlements. This is despite the requirement that employees be given copies of or access to, material incorporated into the agreements by reference. In my view an employee should be able to ascertain the source of such entitlements by referring to the terms of an enterprise agreement. This should not present any difficulty for employers who have signed statutory declarations stating that employees have been given a copy, or access to, written material incorporated into an enterprise agreement by reference.

[42] The provisions dealing with redundancy exclude employees from an entitlement to severance payments, in circumstances where the business or part is transmitted to a new employer, and the employee receives an offer of employment from the new employer on substantially similar conditions and where continuous service is recognised. The Fair WorkAct 2009 at s. 122(3)(b) provides an additional protection, whereby FWA can order redundancy pay if satisfied that such a provision operates unfairly. Similar provisions are also found in a number of the reference instruments nominated for the purposes of the no disadvantage test.

[43] The provisions dealing with changes in the workplace do not give employees the right to be represented in discussions about workplace change. This is an entitlement under the reference instruments, and the Model Consultation Term which is a default provision required to be contained in every agreement. The provisions dealing with redundancy also do not give employees the right to be represented in consultation about redundancy. This is a provision found in the standard redundancy clauses of the reference instruments.

Conclusions

[44] The scheme of the Fair Work Act 2009 is that FWA must approve an enterprise agreement if the requirements set out in s. 186 and s. 187 are met. The requirements are mandatory. The Form F17 required to be filed with an application for approval of an enterprise agreement is a statutory declaration. The form poses a series of questions, for the purpose of establishing that the employer has taken the steps required by the Fair Work Act 2009, so that FWA can be satisfied as to whether the Agreement meets the requirements for approval. Some of the questions set out in the form call for “yes” or “no” answers in the form of the person making the declaration making a mark in a box for that purpose. Other questions require details to be provided. In executing the form F17, the person making the declaration states:

“I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s. 11 of the Statutory Declarations Act 1959, and I believe the statements in this declaration are true in every particular.”

[45] The Form F17 is the primary mechanism for FWA to be satisfied that the requirements of s. 186 and s. 187 of the FW Act have been met. I have asked a number of questions of the NRA in relation to the information provided in declarations executed by employers on behalf of whom the NRA is a bargaining representative. In my view the questions are reasonable and appropriate, and would be asked of any party who had made statements in a statutory declaration on which it sought to rely, which are at very least appear to be incorrect.

[46] There are many other agreements I have asked the same or similar questions in relation to and I will continue to adopt this approach where I consider it to be appropriate in order to be satisfied about the matters the Fair Work Act 2009 requires. To date, the NRA has failed to answer those questions. Contrary to Mr Moore’s submissions, I have not actually asked for undertakings from the employer parties. It may be that the answers to the questions I have asked will address the issues I have raised without the need for undertakings.

[47] It should also be noted that a number of issues I have raised in the earlier applications have not been raised in this decision. For example, having considered virtually identical agreements on three occasions, I have now come to the view that a clause in the Agreements about industrial action is a superfluous clause with no effect, rather than a clause which affects the rights of employees to take industrial action.

[48] I am unable to accept that asking questions in relation to matters about which the Fair Work Act 2009 requires that I be satisfied, can constitute bias. The mere fact that a member of FWA in considering whether to approve an agreement, asks a question that is not asked by another member of FWA considering an identical agreement, is not grounds for alleging bias against the member. Further, I have not refused to hear submissions from the NRA about other members of FWA approving agreements in the same or very similar terms. Quite simply I have not been afforded the courtesy of any submissions about the matters I have raised.

[49] I am also unable to accept that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of matters involving the NRA on the basis of the following facts:

• I was a member of a Full Bench of the Queensland Industrial Relations Commission against which a finding of apprehended bias was made in relation to a trading hours case conducted by the NRA in 2009;

• Actual bias was neither alleged nor found in that case;

• I have sat on another Full Bench of the Queensland Industrial Relations Commission in relation to a trading hours application by the NRA since that finding was made, without objection from the NRA or any other party;

• In the present applications for approval of a number of agreements, the NRA is a bargaining representative for the employer parties;

• I have asked the NRA a number of questions about the Agreements and statutory declarations that each employer party has filed in support of their approval; and

• My questions relate only to the requirements of the Fair Work Act2009 for approval of agreements and go to matters about which the Fair Work Act 2009 mandates that I be satisfied.

[50] I refuse the application to disqualify myself from all current and future matters involving the NRA allocated to me to deal with under the Fair Work Act2009.

[51] The NRA has now had three months to consider the matters I have raised. I have gone to great effort, both in hearings and in this decision, to set out the issues I have with the agreements as filed. I am sure that employers who have appointed the NRA as their bargaining agent and are awaiting consideration of the applications to approve their agreements wish to have the applications dealt with expeditiously. I have made every attempt to do so, in the face of the non-responsiveness of the NRA.

[52] The NRA has seven days from the date of this decision to respond to the matters I have raised on 31 March and 22 April 2010, and now detailed in this decision. The NRA may respond by making written submissions or by requesting, within the seven day time frame, a further hearing for the purpose of responding. Failure to comply with this requirement will result in a decision to refuse the applications for approval of all agreements, issuing without further notice.

COMMISSIONER

 1   National Retail Association Limited Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) C/2008/40; National Retail Association Limited Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) C/2008/43; National Retail Association Limited Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and The Australian Workers’ Union of Employees, Queensland C/2008/44 (2009) 190 QGIG 63.

 2   Johnson v Johnson (2001) 151 CLR 488 at 492 cited by Gooley C in National Tertiary Education Industry Union v Victoria University [2010] FWA 2263.

 3 (1953-1954) 88 CLR 100.

 4   ibid at 116.

 5   National Retail Association Limited Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Shop Distributive and Allied Employees Association (Queensland Branch) Union of Employees TH/2009/2 Decision <

 6   AG2010/5657 (missing page in form F17); AG2009/23871 (question 3.1 relevant awards or NAPSAs not answered and question 3.2 designated awards not answered); AG2010/5102 (question 3.1 relevant awards or NAPSAs and question 3.2 designated awards said to be not applicable); AG2010/5413 (question 3.1 relevant awards or NAPSAs and question 3.2 designated awards said to be not applicable); AG2010/5419 (states NAPSA with no further information); 2010/5420 (question 3.1 relevant awards or NAPSAs and question 3.2 designated awards said to be not applicable); AG2010/5423 (question 3.1 relevant awards or NAPSAs and question 3.2 designated awards said to be not applicable); AG2010/5254 (question 3.1 relevant awards or NAPSAs and question 3.2 designated awards said to be not applicable); AG2010/5112 (question 3.1 relevant awards or NAPSAs and question 3.2 designated awards said to be not applicable); AG2010/5268 (nominates “Federal Fast Food Award” as reference instrument); AG2010/5334 (question 3.1 relevant awards or NAPSAs and question 3.2 designated awards said to be not applicable);

 7   AG2010/5837; AG2009/22450; AG2009/23828; AG2010/5354; AG2010/5356; AG2010/5432; AG2010/5442; AG2010/5414; AG2010/5657; AG2010/5430 (notice of representational rights given one day after all other steps were taken); AG2009/22448; AG23871 (last notice of representational rights under s. 173(1) not given to employees 21 days before the vote to approve the agreement); AG2010/5433; AG2010/5208; AG2010/5211 (notice of representational rights given one day after all other steps were taken); AG2010/5419; AG20105420; AG2010/5438; AG2010/5250; AG2009/23748; AG2010/5417; AG2009/24753; AG2010/5229; AG2009/22496; AG2009/23841; AG2009/23832; AG2010/5410; AG2010/5434; AG2009/23821; AG2009/24800; AG2010/5112; AG2010/5268; AG2010/5334 (all steps other than notification of voting date taken on the same date); AG2009/23816 (all steps other than last notice of employee representational rights taken on the same day); AG2010/4807 (all steps other than last notice of employee representational rights taken on the same day); AG2010/5440; AG2010/5833; AG2009/23857; AG2010/5107; AG2010/5303; AG2001/5830; AG2009/23812; AG2009/21645 (all steps other than request to approve agreement taken on the same date); AG2010/5823 (all steps other than request to approve agreement taken on the same date); AG2010/5821 (all steps other than request to approve agreement taken on the same date); AG2010/5213 (all steps other than last notice of representational rights taken on the same date).

 8   AG2010/5413 (questions 2.8 number of employees to be covered; 2.9 number of employees who voted or 2.10 number of employees who cast a valid vote not answered); AG2010/5437 (28 employees are to be covered by the agreement; 7 employees cast a valid vote; and 7 employees voted to approve the agreement); AG2009/24700 (5 employees to be covered; 5 employees cast a valid vote; 0 employees voted in support of the proposed agreement); AG2010/24756 (questions in relation to total number of employees to be covered; to numbers of employees who cast a valid vote; and numbers of employees who voted in support of the agreement are not answered); AG2010/5189 (question in relation to number of employees to be covered not answered); AG2010/5421 (questions 1.6 to 2.7 missing from form); AG2010/5112 (30 employees to be covered with 12 casting valid vote and 10 voting to approve agreement); AG2010/5428 (17 employees to be covered; 5 cast valid vote; and 4 voted to approve agreement); AG2010/5666 (16 employees to be covered; 6 cast a valid vote; 6 voted to approve the agreement); AG2010/5821 (15 employees to be covered; 7 cast a valid vote; and 4 voted to approve the agreement); AG2010/5821 (26 employees to be covered; 9 cast a valid vote; and 6 voted to approve the agreement);

 9   AG2010/5614 (Agreement made on 31 December 2009 and lodged on 3 February 2010); AG2010/5488 (Agreement made on 31 December 2009 and lodged on 22 January 2010)

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