Australian Capital Territory

[2014] FWC 8644

[2014] FWC 8644

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Capital Territory
(AG2014/7994)

DEPUTY PRESIDENT KOVACIC CANBERRA, 3 DECEMBER 2014

Application for approval of the ACT Public Sector Medical Practitioners Enterprise Agreement 2013 - 2017 - Pre-approval requirements - Application dismissed

[1] An application has been made by the Australian Capital Territory T/A the ACT Public Service (the Applicant) for approval of an enterprise agreement known as the ACT Public Sector Medical Practitioners Enterprise Agreement 2013-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 14 November 2014, Mr John Wilson, Legal Director for Bradley Allen Love, wrote to the Fair Work Commission (the Commission) on behalf of a number of specialist radiation oncologists who are employed by the Applicant and who would be covered by the Agreement. In short, Mr Wilson advised that his clients objected to the approval of the agreement and wished to be heard on the application. Mr Wilson further advised that his clients would contend that with reference to:

(i) s.186(3) of the Act, the group of employees covered by the agreement was not fairly chosen; and

(ii) s.188 of the Act, the Applicant did not comply with s.180(5) of the Act.

[3] Accordingly the application was listed for hearing on 2 December 2014. At that hearing, Mr Wilson appeared as the bargaining representative for the specialist radiation oncologists objecting to the Application, while Ms Robinson appeared with permission for the Applicant.

[4] During the hearing, Ms Robinson conceded that the Applicant had not fully met the requirements of s.180. By way of background, s.180 provides:

“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.”

[5] Specifically, Ms Robinson acknowledged that the Applicant had not satisfied the requirements of s.180(4) in terms of a seven day access period as voting on the agreement commenced on 25 September 2014 which was not a full seven days after employees were informed on 18 September 2014 about the time and place of the vote on the agreement and the voting method to be used. Ms Robinson further acknowledged that, as a result, the requirements of s.180(2) had not been met, and in turn, the requirements of s.188 of the Act had not been satisfied. Accordingly, Ms Robinson accepted that the agreement could not be approved and the ballot process would need to be recommenced.

[6] For the reasons set out above, the application is dismissed. Further, the Commission recommends that Mr Wilson and the Applicant should confer as a matter of priority to discuss the other objection raised by the specialist radiation oncologists, i.e. that with reference to s.186(3) of the Act the group of employees covered by the agreement was not fairly chosen, in an effort to resolve any concerns in this regard.

DEPUTY PRESIDENT

Appearances:

Mr John Wilson, bargaining representative.

Ms Heidi Robinson, of Counsel, for the applicant.

Hearing details:

2014.

Canberra:

December 2.

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