Armstrong Bros Unit Trust T/A Armstrong Bros

[2023] FWC 3181

[2023] FWC 3181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Armstrong Bros Unit Trust T/A Armstrong Bros

(AG2023/4347)

DEPUTY PRESIDENT DOBSON BRISBANE, 1 DECEMBER 2023

Application for approval of the Armstrong Bros Enterprise Agreement 2023 - application dismissed

1. An application has been made for approval of an enterprise agreement known as the Armstrong Bros Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Armstrong Bros Unit Trust T/A Armstrong Bros (the Applicant). The Agreement is a single enterprise agreement.

1. On 24 November 2023 my chambers wrote to the Applicant raising a number of concerns in respect of the Agreement. These were:

a. That the agreement provided for an expiry date that could extend beyond 4 years in accordance with s.186(5) of the Act;

b.   Seeking evidence of the provision of the Notice of Employee Representational Rights being provided to relevant employees;

c. That employees were not provided with the final copy of the Agreement and 7 clear days notice prior to the commencement of voting (instead they were only given 3 days notice) in accordance with the requirements of s.180(3) of the Act;

d.   Seeking a copy of the notice to vote that was provided to relevant employees;

e.   Raising a number of issues that were inconsistent with the National Employment Standards (NES) but noting that the Agreement contained an NES precedence clause and seeking submissions on these issues;

f.    Issues with respect to whether the Agreement passed the better off overall test (BOOT) in respect of the span of hours, overtime triggers, 40 hour week, part time employee hours of work, loaded rates/alternative individual agreements, accident pay and work during meal breaks.

1. On 29 November 2023, my chambers received a response from the Applicant’s representative addressing each of the issues raised.

1. The Applicant’s representative also provided evidence that the NERR was sent to relevant employees on 1 June 2023.

1. The Applicant’s representative provided evidence that employees were provided with the following correspondence on 20 October 2023:

“Hi All

I am distributing this on behalf of Joe Kalolo, who was nominated as the Bargaining Representative for this process.

Please have a read of the document and should you have any questions please let Joe or myself know.

Once you have had 7 days to review, Joseph ad I will meet and ensure everything is ok to move to a vote on approving the Armstrong Bros Enterprise Agreement 2023. Further detail on the vote will be provided once we get to this step.

If you would like a physical copy of the Draft Agreement please let Joseph or myself know.

Thanks heaps

Lachlan”

1. The Applicant’s representative also provided evidence that employees were provided with the following correspondence on 10 November 2023:

“Good Morning

We provided all staff with a copy of the Agreement to review on 20 October 2023 and an opportunity to raise any questions with either your Bargaining Representative, Joseph Kalolo or myself.

We have again met with the Bargaining Representative, Joseph Kalolo, Thursday 9 November 2023 to ensure all staff are ready to move forward to voting.

This vote will occur by secret ballot on Monday 13 November 2023. You are to attend the Front Office for Warehouse and Office for Selling Floor, sign your name and receive a ballot paper. Once you have recorded your vote, please place in the ballot box that will be located at these same locations.

Thanks for your cooperation on this everyone, it has been greatly appreciated.

Thanks
Lachlan”

1. The Form F17A declaration provided by the Applicant indicates at question 26 that the vote commenced and ended on 13 November 2023.

1. In order to approve an enterprise agreement, the Commission must take into account the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (SOP) made under section 188B in determining whether it is satisfied that an enterprise Agreement has been genuinely agreed to by the employees who will be covered by it. Paragraph 16 of the SOP requires that:

“16. Employees should be informed of the time, place and method for the vote:

(a)at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or

(b)by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.”

1. It is clear from the correspondence provided by the Applicant’s representative, that relevant employees were provided a draft copy of the Agreement for feedback and questions on 20 October 2023 and were subsequently informed of the time, place and method of the vote on 10 November 2023. The vote was conducted on 13 November 2023. Therefore employees were only provided 3 days notice instead of the 7 days required.

1. The Applicant advised the Commission that there were not employee organisations that are bargaining representatives at Question 4 of the Form F16 Application. On this basis Paragraph 16 (b) of the SOP cannot apply.

1. It is not necessary for me to consider the other concerns raised nor their responses because the application’s non-compliance with s.188B results in the Agreement being incapable of approval.

1. The application is dismissed.

DEPUTY PRESIDENT

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