Australian Manav Group Pty Ltd

[2020] FWC 3704

[2020] FWC 3704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Manav Group Pty Ltd
(AG2020/1538)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 JULY 2020

Application for approval of the Australian Manav Group Pty Ltd 2020 EBA – First Agreement of the Company – Commission not satisfied the Agreement was genuinely agreed – Application for approval dismissed.

[1] An application has been made for the approval of an enterprise agreement known as the Australian Manav Group Pty Ltd 2020 EBA. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Manav Group Pty Ltd. For the reasons I outline below, I have determined that the application should be dismissed.

[2] The Australian Manav Group Pty Ltd 2020 EBA was intended to be a single enterprise agreement to cover all employees of Australian Manav Group Pty Ltd, which trades as AMG Security, and employs security officers in the security services industry. I will hereafter refer to the Australian Manav Group Pty Ltd 2020 EBA as the ‘proposed Agreement’ and the employer as ‘AMG Security’. AMG Security engaged a paid agent, Platinum Employee Relations Pty Ltd, to be its representative.

[3] In the Form F17-Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17), the notification time for the proposed Agreement was declared to be 18 March 2020. The Notice of Employee Representational Rights (NERR) used Australian Manav Group Pty Ltd’s trading name, described the proposed Agreement as Australian Manav Group Pty Ltd EBA 2020 (which is different to the name described in clause 1 of the proposed Agreement) and described the employees to be covered as those that work in the Security Services Industry. The NERR was declared to have been emailed to all employees on 18 March 2020, with the employees alerted to its existence with a telephone call. It would appear from the answer to Q.4.4 of the Form F17 that the proposed Agreement is the first Agreement that AMG Security has attempted to make with its employees.

[4] Evidently there were two employee bargaining representatives. It is declared that on 8 April 2020, there was a discussion with employees. On 15 April and 22 April 2020, the Agreement was apparently reached by the Director of AMG Security and the two bargaining representatives.

[5] I am advised that on 28 April 2020, the Director of AMG Security then telephoned each of the 17 employees and advised them regarding:

•  the process;

•  what the agreement changes were;

•  the higher weekday rates of pay;

•  the lower weekend rates of pay; and

•  a clause in the proposed Agreement that meant that the employees would not be worse off.

[6] On 29 April 2020, Mr Michael Corrigan of Platinum Employee Relations Pty Ltd says an email with the following text was sent to all employees:

“Dear Employee

Platinum Employee Relations has been tasked with assisting AMG Security with their Enterprise Bargaining Agreement, please find an attached copy of this agreement and award.

You will be required to vote on this agreement commencing next Thursday 7^th May with votes closing Monday 11^th May 2020. Voting will be via a secret ballot paper posted to your house with a reply paid envelope to send back to Platinum Employee Relations, we will not know who vote for or against the agreement.

Please have a read of the document and if you have any questions please do not hesitate to contact Manny or myself Michael Corrigan as we are happy to assist. Once again thank you for your participation in this process.

Thanking you

Michael Corrigan” 

[7] The voting period was subsequently extended, so as to end on 20 May 2020. I have been advised that the Director of AMG Security telephoned employees to advise them of this extension to the voting period. It is declared in the Form F17 that seventeen employees were proposed to be covered by the proposed Agreement at the time of the vote and there was unanimous support for the proposed Agreement from the fifteen employees who cast a valid vote.

[8] It is therefore apparent that at the time of the telephone calls on 28 April 2020, the employees had neither a copy of the proposed Agreement nor a copy of the Security Services Industry Award 2010 (the Award) provided to them by AMG Security. Following a telephone Mention on 23 June 2020, the following matters were put to Mr Corrigan:

“You have advised that voting for the Agreement was to commence on 7 May 2020 and that employees were posted ballot papers via express post mailed on 6 May 2020. Please supply evidence that supports this. Further, you have also indicated that the employees were advised that the date the voting for the Agreement closed on 20 May 2020. Please confirm the manner in which this was communicated to the employees.

At Question 2.8 of the Form F17 you have advised that the Director of Company called all 17 employees on 28 April 2020 advising them of what the EBA changes were about, providing an explanation that rates of pay were higher on weekdays, lower on weekends, and employees would not be worse off due to there being a clause in the Agreement. Noting that there has been no previous agreement and that the employees were not provided with a copy of the Agreement and Award until 29 April 2020, how can the Deputy President be satisfied that the employer took all reasonable steps to explain the terms of the Agreement, as required by s.180(5) of the Act?

Given that the email to employees dated 29 April 2020 states “you will be required to vote on this agreement”, how can the Deputy President be satisfied that the Agreement has been genuinely agreed?”

[9] Also, as a result of my review of the application and discussion at the telephone Mention, a range of other, additional issues regarding the proposed Agreement were raised and put to Mr Corrigan:

•  Having noted that the proposed Agreement was to prevail over the National Employment Standards (NES) to the extent of any inconsistency, issues were identified with:

•  Clause 20.2 – personal leave accrual.

•  Clause 21.1 – annual leave accrual.

•  Clause 26 - termination by abandonment.

•  Clause 28.1.5 – providing that notice of termination would not apply to apprentices.

•  A copy of the roster patterns to be worked by employees over the course of one month was sought, it having been noted that Clause 13.1 appears to provide a 175% loading on ‘weekend only’ work while the Award clause 20.2 provides for 200% for Sunday work.

•  Clause 11.5.3 of the proposed Agreement, which provides for a minimum shift for part-time employees of three hours, was raised as a concern because the Award at clause 13.3(a)(ii) provides a minimum of four hours or 20% the employee’s ordinary weekly hours, whichever is higher.

•  Clause 15.1 of the proposed Agreement was also raised as a concern. It provides for employees requesting additional hours to be paid according to clause 13.1 (i.e. base rates for the relevant roster) and it was suggested AMG Security might want to address the two paragraphs immediately under clause 15.1.4 because their wording was less than clear in relation to employee entitlements to overtime in circumstances in which employees work additional hours.

•  Clarity was sought in relation to clause 15.4.1 of the proposed Agreement, which provides for one 10-minute paid rest break in the first half of the shift because Mr Corrigan had indicated at the telephone Mention that it was intended that there be two 10-minute paid rest breaks.

•  Clause 13.1 of the proposed Agreement providing for reconciliation every 28 days only provided for the payment of any shortfall comparable to the Award but did not require that an employee who had had his or her pay reconciled to be better off overall.

[10] The response to my queries included not only 10 separate undertakings in writing from AMG Security but also the following responses:

1) The postal records regarding the voting for the proposed Agreement could not be provided as Mr Corrigan is currently in Queensland and the records are in Melbourne, with the COVID-19 travel restrictions preventing him from getting them. Mr Corrigan further advised that the Director of AMG Security had telephoned employees to advise them of the extension to the voting period.

2) Section180(5) of the Act did not require the employees to have a copy of the Agreement in front of them at the time of the explanation on 28 April 2020, as this was not considered the access period. The discussion on 28 April 2020 was to provide the employees with information on what was coming to them via email the next day. Further, the Director advised the employees of the changes from the Award to the proposed Agreement and also explained things in their “native tongue”. Finally, the employees were advised on 28 April 2020 that the Director and Mr Corrigan would be available to answer any further questions.

3) The statement “you will be required to vote on this agreement” did not coerce the employee into making a ‘yes’ or ‘no’ vote for the Agreement and there was no indication in the statement made that there would be any ramifications for employees should they not vote. It was submitted I should use my discretion “as the words have not breached the act [sic] where it would not become an offence against the Commonwealth.”

Consideration

[11] On the basis of the material contained in the application, the accompanying statutory declaration and the responses from Mr Corrigan of Platinum Employee Relations Pty Ltd, I am not satisfied that the requirements of ss.186(2)(a) and 188 of the Act have been met. I am not satisfied the proposed Agreement has been genuinely agreed by the employees for the following reasons:

a) The proposed Agreement was to be the first between AMG Security and its employees, many of whom are from non-English speaking backgrounds and are employed in low paid, unskilled positions as security guards and yet the only explanation provided by AMG Security as to the proposed Agreement’s terms and effect was given in one-on-one telephone calls, at which time the employee had neither the text of the proposed Agreement nor the Award to refer to. At no time was any written explanation provided. As such, I do not consider AMG Security took all reasonable steps to ensure the terms of the proposed Agreement and the effect of those terms were explained to its employees.

b) With seventeen employees to be covered by the proposed Agreement at the time of the vote, I have been asked to accept that there were seventeen separate telephone calls made by the Director of AMG Security on a single day, and each one explained the terms of a 27-page Agreement and its inconsistency with both the NES and a 58-page Award, even though neither the proposed Agreement nor the Award had been made available to the seventeen employees at that time. Again, I do not consider AMG Security took all reasonable steps to ensure the terms of the proposed Agreement and the effect of those terms were explained to its employees.

c) While ten separate undertakings have now been offered, they cover and address deficiencies with some fundamental terms and conditions of employment. That the significance of these deficiencies appears to have been lost on AMG Security and its representative until only recently raises real questions about the quality of the explanations given by AMG Security to its seventeen employees. For instance, in circumstances where base rates of pay under the proposed Agreement are only slightly above the Award rates of pay, the terms of the proposed Agreement indicate:

•  AMG Security and Platinum Employee Relations do not themselves know how leave accrues pursuant to the NES;

•  AMG Security and Platinum Employee Relations had put forward an Agreement that did not clearly articulate what the spread of ordinary hours of work was to be and included a clause that employees “requesting additional hours” would be paid at ordinary time rates, which to my mind sits uneasily with a term which entitles overtime payments when ‘required’ to do so;

•  The minimum engagement for part time employees was intended to be one hour less than the minimum engagement under the Award;

•  That while there are penalty rates for Monday-Saturday Nights and Monday-Sunday Nights, there is no explanation in the text of the proposed Agreement as to what hours of work would attract them;

•  Any employee working on Sundays during a 28-day period would need to constantly and carefully check their wages to ensure they have not been paid less than the Award. The sample of rosters provided to me indicate that at least eight of 14 employees might not have been better off overall than the Award over the period 25 May 2020-21 June 2020; and

•  There was no reference to the second 10-minute paid rest break which I have been informed was the intention of AMG Security to provide.

d) I maintain my serious reservations about the manner in which the words “you will be required to vote on this agreement” could have been interpreted by the employees in the circumstances of this case. I do not consider this was as much a request that the employees vote as a request that they vote to approve the proposed Agreement.

Conclusion

[12] I am not satisfied the proposed Agreement has been genuinely agreed by the employees. I have serious doubts about the quality of the explanation given by AMG Security in circumstances where this was the first Agreement it intended to make with employees and when so many undertakings would be required.

[13] As I am not persuaded the statutory requirements for the approval of the proposed Agreement have been met, the application for the approval of the enterprise agreement known as the Australian Manav Group Pty Ltd 2020 EBA is dismissed.

DEPUTY PRESIDENT

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