Australian Nursing Federation
[2010] FWA 6725
•31 AUGUST 2010
[2010] FWA 6725 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Nursing Federation
(AG2010/11650)
COMMISSIONER GOOLEY | MELBOURNE, 31 AUGUST 2010 |
Linley Clinic and ANF Enterprise Agreement 2010.
[1] An application has been made for approval of an enterprise agreement known as Linley Clinic and Australian Nursing Federation Enterprise Agreement 2010 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by the Australian Nursing Federation (ANF) a bargaining representative appointed by an employee. The agreement is a single-enterprise agreement.
[2] The Form F17 in this matter, signed by Ms Ann O’Connor for the employer, advised that voting commenced on 14 June 2010.
[3] In answer to question 2.4 Ms O’Connor wrote:
“On 8/6/2010 a voting slip was sent via email to employees stating the agreement and the reference instruments of the proposed agreement (Linley Clinic and ANF EBA) was on display in the Staff tea room. The ballot box was not available until 14/6/2010 for voting.”
[4] On 9 July 2010 I wrote to the bargaining representative and the employer about three procedural matters.
[5] I asked whether employees had access to the Agreement and the incorporated award in the seven days ending immediately prior to the commencement of voting.
[6] I also asked whether employees were told of the time and place of voting and the voting method seven days before the start of voting.
[7] I further noted that the notice of representational rights provided to employees did not advise employees that if they were members of a union then the union was the default bargaining representative, unless the employee appoints another bargaining representative, and as such the notice did not comply with section 174 of the Act.
[8] I did not receive a response to the email so the matter was listed for hearing on 29 July 2010.
[9] Mr Denis O’Callaghan of the ANF appeared at the hearing along with Ms Alexis Colgan. Ms Liz Shannon appeared along with Ms Cherry Mosley for the employer.
Pre-approval requirements.
[10] The Act sets out at section 180 the preapproval steps to be followed before an employer requests employees approve an agreement.
“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).”
[11] In this case as voting commenced on 14 June 2010, the access period commenced on the 7 June 2010.
[12] At the hearing, Mr O’Callaghan advised that a meeting was conducted by the ANF and the employer with staff on 25 May 2010, and at that meeting employees were given access to the agreement and the incorporated awards. If that was correct then section 180(2) has been complied with.
[13] Mr O’Callaghan however advised that employees were not notified by the start of the access period for the agreement of the time and place at which the vote would occur and the voting method to be used. Employees did not receive this notice until 8 June 2010. Mr O’Callaghan suggested that as the ballot box was not available until late on 14 June 2010, that voting did not really commence until 15 June 2010.
[14] Mr O’Callaghan suggested that I adopt the approach taken by the Full Bench in McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association. 1 However in that matter the Full Bench held that it was beyond doubt that the employers took reasonable steps to notify employees of the relevant information in section 180(3) by the start of the access period.2 In this case there is no evidence that any steps were taken prior to 8 June 2010 to comply with section 180 (3). I do not accept Mr O’Callaghan’s submissions that voting did not really commence until 15 June 2010.
The notice of representational rights.
[15] Section 174 of the FW Act sets out the content of the notice of representational rights.
“174 Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low-paid authorisation is in
operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).
Regulations may prescribe additional content and form requirements etc.
(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.”
[16] Regulation 2.05 of the Fair Work Regulations 2009 provide for the notice is in a prescribed form.
“2.05 Notice of employee representational rights — prescribed form
For subsection 174 (6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”
[17] The prescribed notice is as follows:
“Schedule 2.1 Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174 (6)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low-paid authorisation applies — include:]
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.
[If a low-paid authorisation applies to the agreement — include:]
Fair Work Australia has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.
[if the employee is covered by an individual agreement-based transitional instrument — include:]
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:
● the nominal expiry date of your existing agreement has passed; or
● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Australia Infoline on [insert number].”
[18] The notice provided by the employer in this instance did not provide the following:
“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”
[19] It is understandable given the employer was bargaining with the ANF that they may have considered this section of the form to be irrelevant but nevertheless section 174(3) makes this provision mandatory.
[20] As the notice of representation rights did not comply with the requirements in section 174 then no notice of representational rights has been provided to employees.
[21] I also note that the notice advised employees that the Agreement did not cover any staff being paid at above award rates. This is inconsistent with clause 5 of the Agreement which provides that it covers employees whose employment falls within the scope of the Nurses (Victorian Health Services) Award 2000 [790805] as in force at 31 December 2009 and may have misled employees about their entitlement to be represented in the process.
[22] The procedural requirements in section 180 are mandatory and compliance with these provisions cannot be waived. As such the failure to comply with section 180 (3) means that the Agreement cannot be approved. Even had these requirements been complied with the failure to provide a notice in accordance with section 174 of the FWA means that the Agreement cannot be approved and I dismiss the application for approval.
COMMISSIONER
Appearances:
D O’Callaghan for the Australian Nursing Federation
L Shannon for Linley Clinic
Hearing details:
2010.
Melbourne
July 29.
1 [2010] FWAFB 4602
2 Ibid at [2]
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