Better Read Pty Limited T/A Better Read Than Dead
[2022] FWC 886
| [2022] FWC 886 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Better Read Pty Limited T/A Better Read Than Dead
(AG2022/131)
| DEPUTY PRESIDENT EASTON | SYDNEY, 14 APRIL 2022 |
Application for approval of The Better Read Than Dead Enterprise Agreement 2021 – requirement to ensure the terms of the agreement are explained to relevant employees – task left to bargaining representatives – application refused.
Better Read Pty Limited t/a Better Read Than Dead (the Employer/Better Read) has applied for the approval of The Better Read Than Dead Enterprise Agreement 2021 (the Agreement). From June 2021 to December 2021 Better Read and the Retail and Fast Food Workers’ Union Incorporated (RAFFWU), as the bargaining representative for a some of Better Read’s employees, were in discussions to finalise the terms and wording of the Agreement.
With the assistance of the Fair Work Commission (FWC) the parties seemed to reach an agreement in early December 2021.
On or around 5 December 2021 Ms Kate Colley was appointed the bargaining representative for a number of employees not represented by RAFFWU.
On 6 December 2021 Better Read sent a draft copy of the proposed Agreement to RAFFWU. In an email exchange on the same day Better Read indicated to RAFFWU that it was prepared to make an agreement in the terms sent, but foreshadowed the possibility of other amendments that might be proposed by the new bargaining representative, Ms Colley.
In the evening of 6 December 2021 the employees represented by RAFFWU met and agreed to make an agreement in the terms proposed.
On 7 December 2021 employer representatives met with Ms Colley, provided the same draft to her and explain the terms of the Agreement.
Ms Colley then met with those whom she represented and on 9 December 2021 Ms Colley advised Better Read that those employees also voted to approve the agreement.
On 10 December 2021 the final version of the Agreement was sent to RAFFWU, which resulted in the cessation of protected industrial action by employees.
On 15 December 2021 Vero Engagement and Voting Solutions Pty Ltd, an independent voting service, contacted all employees via email and SMS to advise about the voting process and the date and time of the voting period, and provided a user guide on how to vote.
On 17 December 2021 a copy of the Agreement was sent to all employees.
The voting period commenced on 3 January 2022 and closed on 5 January 2022.
23 employees were covered by the proposed agreement at the time of the vote. 18 employees voted and all of those employees voted to approve the Agreement.
Better Read then applied to the FWC for approval of the Agreement.
RAFFWU now submits that the Agreement cannot be approved because Better Read did not meet its statutory duty under s.180(5) and (6) of the Fair Work Act 2009 (Cth) (the Act).
The FWC can only approve an Agreement if it is satisfied that the Agreement has been “genuinely agreed to” (per s.188) which in turn requires the FWC to be satisfied that the employer has complied with the preapproval requirements s.180(5) amongst other things.
Section 180(5) is in the following terms:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
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.
The requirements of s.180(5) were summarised by the Full Bench in CFMMEU v Ditchfield Mining Services Pty Limited[1]:
“[65] First, whether an employer has complied with the obligation in s.180(5) depends on the circumstances of the case.
[66] Secondly, the focus of the enquiry whether an employer has complied with s.180(5) is first on the steps taken to comply, and then to consider whether:
· the steps taken were reasonable in the circumstances; and
· these were all the reasonable steps that should have been taken in the circumstances.
[67] Thirdly, the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given.
[68] Fourthly, an employer does not fall short of complying with the obligation in s.180(5) of the Act merely because an employee does not understand the explanation provided.
[69] That the content of the explanation given is an important consideration in assessing whether all reasonable steps were taken for the purposes of s.180(5) is made clear by the Full Court of the Federal Court in One Key Workforce (No 2). In this regard, the Full Court made the following observations about the Commission’s function in considering under s.188(a)(i) of the Act whether it is satisfied that the employer has complied with s.180(5):
“112 It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).
113 A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.
…”
In Construction, Forestry, Maritime, Mining and Energy Union (105N) & "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) v Temmco Total Energy Mining Maintenance Company Pty Ltd[2] (Temmco) the Full Bench found that where the evidence indicated that a copy of the proposed Agreement was only provided to one employee “for distribution to [other employees]”, neither the requirement under s.180(2) to provide relevant employees with a written copy of the agreement, nor the requirement under s.180(5), to ensure that the effect of the terms of the agreement are explained to relevant employees, were complied with.[3]
The requirements of s.180(2) have been met insofar as a copy of the Agreement was provided to all employees by Vero Engagement and Voting Solutions Pty Ltd.
The issue for determination is whether s.180(5) was complied with (and therefore whether the Agreement has been genuinely agreed to per s.188).
On the materials provided to the Commission it seems that the only step the employer took to ensure that the terms of the Agreement and the effect of those terms were explained to the relevant employees was to speak to Ms Colley in her capacity as a newly appointed bargaining representative. Better Read has not provided any evidence of what information and explanations were provided to Ms Colley.
Better Read’s submissions included the following:
“The applicant submits that the requirements of s 180(5) have been satisfied in that it had taken all reasonable steps to ensure the terms and effect of the agreement were explained to the relevant employees. The wording, terms and effect of the agreement were the subject of much debate including attendances at the Commission before Easton DP for private conference. In the applicant’s respectful submission, there can be no doubt that each and every employee was aware of the issues in dispute, the wording of the agreement and the terms and effect of the final agreement.
…
We further note that due to the aggressive industrial campaign adopted by RAFFWU and the employees in relation to the terms and effect of the enterprise agreement, management felt it was not appropriate to have direct discussions with the employees. The heightened aggression in the workplace meant that it was, in our respectful submission, a far more appropriate approach to have the bargaining representatives relay the employer’s explanation of the terms and effect of the enterprise agreement. This would also ensure that the employer complied with its obligations pursuant to the Work Health & Safety Act, 2011 (NSW).”
The reference to employer complying with its obligations pursuant to the Work Health and Safety Act 2011 (NSW) is a reference to allegations that some employees represented by RAFFWU engaged in bullying conduct against other employees not represented by RAFFWU.
For some employees, being those for whom RAFFWU was a bargaining agent, the employer relied upon RAFFWU to provide adequate information and to explain the terms of the Agreement and the effect of those terms. The employer didn’t communicate directly with those employees about the Agreement, it says, because of the “heightened aggression” in the workplace during the bargaining process.
RAFFWU led no evidence of any information or explanation it provided to its clients. In fact RAFFWU led no evidence at all that could support the approval of the Agreement it brokered with the employer. RAFFWU’s submissions included the following:
“RAFFWU did not agree to (nor did it) participate on behalf of [Better Read] in how it met its obligations under s.180 (5). We are concerned the FWC not be misled if it were to infer RAFFWU was tasked with assisting [Better Read] to meet its statutory duty.
…
We do not believe [Better Read] has shown the FWC how it met its obligations under s.180 (5) and (6). We do not believe [Better Read] can show the FWC how it met those obligations.”
Section 180(5) does not impose any obligation upon RAFFWU to explain the terms of the agreement or the effect of those terms. RAFFWU is not a registered organisation.
Unfortunately Better Read relied on RAFFWU and on the other appointed bargaining representative, Ms Colley, to explain to relevant employees the terms of the Agreement and the effect of those terms.
It is understandable in the circumstances, being a heated industrial, public and social media campaign by RAFFWU and its clients, that Better Read chose the path of least contentiousness and relied on the bargaining representatives to explain the terms of the Agreement and the effect of those terms to relevant employees.
However I cannot find that the employer took “all reasonable steps” to ensure that the terms were explained to the relevant employees. The requirements of s.180(5) cannot be delegated to another.
I accept that it is possible that RAFFWU did in fact provide proper explanations of the terms of the Agreement to those it represents, and that it is possible that Better Read’s decision to rely on RAFFWU was reasonable. However there is no material before me from which I could be satisfied of such matters. For whatever reason RAFFWU has sat on its proverbial hands and has not said whether it provided to its clients any explanation of the terms of the agreement or the effect of those terms. As referred to above, nor has RAFFWU provided any support for the approval of the Agreement it brokered for its clients.
Similarly, there is no evidence of Ms Colley providing any explanation to those she represented.
In fact there is no evidence of precisely which employees were clients of RAFFWU, nor was there any evidence of which employees were represented by Ms Colley. I cannot be certain, for example, that every employee had a bargaining representative. The circumstances of this matter are indistinguishable from those in Temmco.
Without having any understanding or evidence of the information that was actually provided to relevant employees, I cannot be satisfied that the employer has complied with s.180(5).
I therefore cannot be satisfied that the Agreement has been genuinely agreed to under s.186(2) and s.188, and the application must be dismissed.
DEPUTY PRESIDENT
[1] [2019] FWCFB 4022 at [64]-[69] citing CFMMEU v OneKey Workforce Pty Ltd (2017) 270 IR 410 at [94]-[109], [2017] FCA 1266, affirmed on appeal in (2018) 277 IR 23, [2018] FCAFC 77.
[2] [2021] FWCFB 6048.
[3] Ibid at [48]-[50].
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