Ardroc Pty Ltd T/A Ardroc Pty Ltd
[2024] FWCA 2140
•13 JUNE 2024
| [2024] FWCA 2140 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Ardroc Pty Ltd T/A Ardroc Pty Ltd
(AG2024/1634)
ARDROC ENTERPRISE AGREEMENT 2024
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 13 JUNE 2024 |
Application for approval of the ARDROC Enterprise Agreement 2024
Ardroc Pty Ltd T/A Ardroc Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the ARDROC Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The copy of the notice of employee representational rights (NERR) lodged by the Applicant with its application for the approval of the Agreement was the NERR prescribed by Schedule 2.1 of the regulations immediately before the 6 June 2023 reforms (old NERR). The correct NERR for this Agreement was the one prescribed by Schedule 2.1 of the regulations that took effect from 6 June 2023. The Applicant mistakenly used the old NERR, but had made no other changes to it, other than the text required by it, including the employer’s name and the name of the enterprise agreement. I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s 174(1A) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s 188(5) of the Act.
The NERR stated that the Agreement covered a particular group of employees employed in the classifications in the Agreement anywhere within Western Australia. However, whilst the employees were emailed the NERR on 28 February 2024, the proposed Agreement was provided to employees on 29 April 2024, therefore rendering it unclear whether employees knew they were in a classification covered by the Agreement at the time the NERR was provided. However, having considered the submissions of the Applicant, I am satisfied that the coverage of the proposed Agreement was clear to employees at the time they received the NERR.
All employees who were eligible to vote on the proposed Agreement and in fact voted on the proposed Agreement, were employed on a casual basis. This raised the concern that the Agreement may not have been made by a majority of employees who cast a valid vote (see ss 181(1) and 182(1) of the Act). At the time of the vote, there were 22 employees covered by the proposed Agreement,[1] 22 of whom were casual employees.[2]
It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees. However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of s 181(1). In relation to permanent employees, it is of course a relatively straightforward exercise.
In the decision of St John of God Health Care Inc (St John),[3] I traversed the authorities that have considered the phrase ‘employed at the time’. I do not intend to repeat here what was said in St John because based on the Applicant’s submissions, I am satisfied that the Agreement was made in accordance with s 182(1).
Section 186(2)(a) of the Act requires that the Commission be satisfied that an agreement was genuinely agreed. Section 188 goes on to set out certain matters that the Commission must take into account or be satisfied of in determining whether an agreement has been genuinely agreed. Relevantly for present purposes, s 188(1) requires the Commission to take into account the Statement of Principles made under s 188B in determining whether it is satisfied that the Agreement was genuinely agreed.
Further, s 188(4A) of the Act states the Commission cannot be satisfied that an agreement was genuinely agreed unless satisfied that the employer complied with s 180(5) of the Act. Section 180(5) requires an employer to take all reasonable steps to explain the terms of an enterprise agreement and the effect of those terms and ensure that the explanation is provided in an appropriate manner taking into the particular circumstances of the employees who will be covered by the Agreement.
Pursuant to s 188B of the Act, the Commission issued the Statement of Principles on 12 May 2023. While the Commission is required to take into account the Statement of Principles in determining whether an agreement has been genuinely agreed, it does not operate as a set of mandatory rules that must be complied with by an employer absent which the Commission cannot be satisfied that an agreement has been genuinely agreed.[4]
An issue arose in respect of the explanation provided to employees and whether the Commission could be satisfied that the Applicant took reasonable steps to explain the terms of the Agreement and their effect. Mr Liam McKinney, Managing Director of the Applicant, provided a witness statement describing the steps taken to explain the terms of the Agreement and the effect of those terms, in addition to the information set out at question 22 of the Form F17B. Employees were provided with written explanatory material and multiple information sessions were conducted during the access period, which included a clause by clause ‘read through’ and comparison to the relevant modern award. During the information sessions, employees were provided with the opportunity to ask questions. I find that all reasonable steps were taken by the Applicant necessary to satisfy the requirements of s 180(5) of the Act.
Pursuant to s 594(1)(c) of the Fair Work Act 2009 (Cth), the Applicant applied to the Commission for orders that the following information not be disclosed to any person and is to be kept confidential:
a) Names and contact details of the employee bargaining representatives identified in the Form F16 and/or on the signature page of the Agreement; and
b) the address of Mr Liam McKinney, Managing Director of the Applicant, as provided on the signature page of the Agreement.
I have considered the submissions made in support of the application under s 594(1)(c) that bargaining representatives are concerned there may be adverse consequences if a third party or member of the public obtained their details. It follows that I have determined that the Agreement that was made, be published, and in so far as necessary, I exercise my discretion under s 594(1)(c) of the Act to redact the details of the employee signatory to the Agreement and keep confidential any information which identified the employee signatory and other employee bargaining representatives in the approval application (Form F16), having satisfied myself that the employees are entitled, as bargaining representatives, to sign the Agreement and to have had their names and contact details included in the Form F16. Further, the address of Mr McKinney on the signatory page will be redacted.
The Applicant 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.
In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
The Agreement was approved on 13 June 2024 and, in accordance with s 54, will operate from 20 June 2024. The nominal expiry date of the Agreement is 13 June 2028.
DEPUTY PRESIDENT
Annexure A
[1] Form F17B – Employer’s declaration in support of an application for approval of a single enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 29.
[2] Ibid question 6.
[3] [2023] FWCA 87.
[4] Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd T/A Subway Clare, Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[2024] FWCFB 48, [76].
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