Boral Construction Materials Group Ltd T/A Boral Tasmania

[2013] FWC 8961

[2013] FWC 8961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Construction Materials Group Ltd T/A Boral Tasmania
(AG2013/2679)

COMMISSIONER LEE MELBOURNE, 15 NOVEMBER 2013

Application for approval of the Boral Tasmanian Fleet Enterprise Agreement 2013.

[1] An application has been made for approval of a single enterprise agreement known as the Boral Tasmanian Fleet Enterprise Agreement 2013 (the proposed Agreement). The application was made by Boral Construction Materials Group T/A Boral Tasmania, (the Applicant) pursuant to section 185 of the Fair Work Act 2009 (the Act).

Notice of employee representational rights

[2] On 22 October 2013, I wrote to the Applicant raising a number of issues with the application as lodged. One of the issues I raised was the provision of the notice of employee representational rights. I noted that it appeared that the notice of employee representational rights complied with the requirements of the Act. However, I noted that I had a concern that the combination of materials issued to employees may be inconsistent with section 174(1A) of the Act. The basis of my concern was that the notice of employee representation rights was accompanied by a form headed “Notice to appoint a bargaining representative”.

[3] On 25 October 2013 my chambers received a reply from Ms Jane Cleary for the Applicant. That correspondence contained the following:

“In respect to the Notice of Representational Rights, we understand the Commissioner's concern to be that this document and the Notice to Appoint a Bargaining Representative (Notice) together are not consistent with the requirements of section 174(1A) of the Fair Work Act 2009 (Cth) (Act). It is our submission that the Notice of Representational Rights and/or the Notice provided to employees on 17 June 2013 comply with the requirements of section 174(1A) and we respectfully request the approval of the Agreement.

In making this submission we rely on the following matters:

1. Prior to the Employer issuing the Notice of Representational Rights and the Notice to employees on 17 June 2013, the Employer had commenced discussions with the Transport Workers' Union about the renegotiation of the Agreement. These discussions were entered into with the Transport Workers' Union because the Employer recognises that the Transport Workers' Union is the default bargaining representative for at least some of the employees who will be covered by the Agreement.

2. The Transport Workers Union is the only relevant union with the consistutional capacity to enroll employees who would be covered by the Agreement as members and as such the only default bargaining representative for the purposes of the Agreement.

3. The Tranport Workers' Union discussed the making of the Agreement with its members who would be covered by the Agreement both before and after the Notice of Representational Rights was issued to employees.

4. The Notice was never intended to form part of the Notice of Representational Rights. It was the intention of the Employer that the Notice could be completed and returned if a bargaining representative other than a default bargaining representative was to be appointed.

5. The completion and return of the Notice was not compulsory and this was made clear to all employees who would be covered by the Agreement prior to the Notice being issued and also that in the event they did not return a completed copy of the Notice, the Transport Workers' Union would be their default bargaining representative.

6. The Notice places no requirement on employees to advise the Employer they would like to appoint a union of which they are a member as their default bargaining representative and/or to disclose union membership or otherwise.

7. Not all employees completed and returned a copy of the Notice to the Employer and as such the Transport Workers' Union was recognised as the default bargaining representative of those employees.

8. The Agreement was negotiated between the Employer, the Transport Workers' Union and the other bargaining representatives.

9. The Transport Worker's Union and other appointed bargaining representatives support the approval of the Agreement.

In the circumstances it is our respectful submission that there should be no jurisdictional impediment to the approval of the Agreement and we ask that Commissioner Lee approve the Agreement so that the employees covered by it can receive the benefit of its terms.”

[4] I further replied to that correspondence on 1 November 2013, in the following terms:

“I refer to the abovementioned application and your correspondence of 25 October 2013.

I have considered that correspondence. I advise that I continue to have concerns that the combination of materials issues to employees may be inconsistent with section 174(1A) of the Fair Work Act 2009 (the Act).

I have attached for your consideration a copy of a decision of Deputy President Gooley in Shape Shopfitters Pty Ltd. That decision dealt with a similar situation where employees were provided with a document that complies with the Fair Work Regulations 2009 and, at the same time, another document with additional content. The case considers whether the provision of the two documents is sufficient to comply with s.174(a) of the Act. While the facts in that case are of course different to this matter, there are strong parallels and the principles enunciated in that decision, which I respectfully agree with, are likely to apply in this matter.

Accordingly, I have formed preliminary view is that the application should be dismissed.

You may request a hearing in order to make submissions in relation to this matter. Any request for a hearing should be received no later than close of business Friday 8 November 2013.

If I do not receive a request for a hearing by close of business Friday 8 November 2013, the application will be dismissed.

If you have any queries in relation to this correspondence, please contact Chambers by email at [email protected] or by telephone [phone].”

[5] I did not receive a request for a hearing from the Applicant within the time period.

Relevant provisions of the Act

[6] Section 186 of the Act provides that if an application for approval of an enterprise agreement is made under section 185 of the Act, the Fair Work Commission must approve the agreement if the requirements set out in ss.186 and 187 of the Act are met.

[7] One of the requirements of section 186 is that the agreement has been genuinely agreed to by the employees covered by the Agreement (see s.186(2)(a)).

[8] Section 188 of the Act sets out when employees have genuinely agreed to an enterprise agreement. Section 188 provides as follows:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[9] In Galintel Rolling Mills Pty Ltd T/A The Graham Group 1, The Full Bench considered section s.181(2) of the Act and the provision of the notice of representational rights. The Full Bench stated;

“Subsection 181(2) provides that the employer request to approve an agreement must not be made until at least 21 days after the day on which the last notice under s173(1) in relation to the agreement is given. The AMWU contends that s181(2) can only be satisfied if a valid Notice of Representational Rights is given. Even though the requirement in s181(2) relates to the required period of time between certain events, we agree that the requirement cannot be satisfied if a notice referred to in s173 is not given. It is therefore necessary to consider whether the employer gave a notice under s173.” 2

[10] Section 173 of the Act provides as follows:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.”

[11] On 1 January 2013, the following amendment to the Act took effect and applied to notices of representational rights issued after that part commenced:

“8 After subsection 174(1)

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.” 3

[12] In the letter of 1 November 2013 to Mr Cleary on behalf of the Applicant, I referred to the decision of Deputy President Gooley in Shape Shopfitters Pty Ltd. 4 That decision dealt with a similar situation to the one before me. In the case of Shape Shopfitters, the employees were given both a notice that complied with the Act, as well as an attached notice which provided for employees to advise their employer of one of three options:

“[ ] I am a member of an employee organisation and elect my default bargaining representative.

[ ] I appoint myself as the bargaining representative.

[ ] I appoint [insert name] to represent my interests as bargaining agent in the negotiations for an enterprise agreement.”

[13] The facts in that case parallel the facts in this matter. In this matter, the Applicant has supplied a notice of employee representational rights in the correct form. However, there is an attached notice in the following form:

“Notice To Appoint A Bargaining Representative

Fair Work Act 2009

To: Michael Renfree

-----------------[employee name], appoint, pursuant to section 176(1)(c) of the Fair Work Act 2009 the following person or employee organization to be my bargaining representative:

-----------------

[name of person (which can include yourself) or union (which must have coverage of the work under the proposed agreement) appointed]

Boral Tasmanian Fleet Enterprise Agreement 2013, which is proposed to cover employees that are employed by Boral Construction Materials Group Limited, working in concrete plants, quarries, mobile plant and contractor sites operated by the company in Tasmania in classifications covered by the Agreement.

Where I had previously appointed any bargaining representative, (including any default bargaining representative) I acknowledge that the above named bargaining representative will represent me in the Agreement negotiations as from the date of this notice.

Name

Signature

Date”

[14] In the decision in Shape Shopfitters Pty Ltd 5, Deputy President Gooley sets out the background to the amendment to section 174 of the Act in paragraphs [7] to [9]. That background makes clear that the intent of the amendment to section 174 was to “make clear” that no other content can be included with the notice of employee representative rights in the manner the Full Bench accepted in Galintel Rolling Mills Pty Ltd T/A The Graham Group.

[15] In paragraphs [10] to [12], the Deputy President set out the following principles in determining the matter that was before her:

“[10] The question that needs to be determined is whether, by providing the employees a document that complies with the regulations and at the same time another document with additional content, is sufficient to overcome the mandatory requirements of s174(1A).

[11] There is no doubt that in Galintel where the notice of representational rights provided to the employees contained the content required by the FW Act and regulation plus a tear off slip which was to be used to advise employers of their bargaining representative contained other content and as such it would not comply with section 174(1A).

[12] In my view it would make the amendment to the FW Act otiose and defeat the purpose of the legislative change if all that was required was that the additional content be included in a separate document provided to employees at the same time as a document which set out the matters required by the FW Act and regulations.” 6

[16] I respectfully agree with those principles.

[17] The Deputy President found that the two documents provided to employees comprise the notice of representative rights and that as the notice of representative rights contains additional content it does not comply with section 174(1A) and that a consequence, no notice of employee representational rights was provided. 7 The facts in this case are analogous. The two documents provided by the Applicant, combined, comprise the notice. As it contains additional content, no notice was provided and therefore, the requirement in section 181(2) of the Act is not met and the application for approval must be dismissed.

[18] I further note that the additional notice is inconsistent with the terms of the prescribed content of the notice of employee representative rights. It asks employees to appoint a person or employee organisation to be their bargaining representative. An employee organisation does not need to be appointed if the employee is a member, they are already the default representative. If the employee is not a member of the union, then it is misleading and confusing to infer the union will represent them simply as a result of the employee filling in that form.

[19] The letter from Ms. Clearly on behalf of the Applicant, states that the notice places no requirements on employees to advise the employer they would like to appoint a union of which they are a member as their default bargaining representative and/or to disclose union membership or otherwise. I agree it is not a requirement, but is a likely outcome given the structure of the form.

[20] A further concern is that the letter from Ms Cleary indicates that, “…in the event they did not return a completed copy of the notice, the TWU would be their default bargaining representative” and further, “[n]ot all employees completed and returned a copy of the Notice to the employer and as such the Transport Workers Union was recognized as the default bargaining representative of those employees”. This is inconsistent with the notice of employee representative rights.

[21] I note that the Transport Workers Union and other appointed bargaining representatives support the approval of the proposed agreement. However, as the notice of employee representational rights does not comply with section 174A of the Act, I cannot approve the agreement for the reasons outlined above.

[22] The application is dismissed.

COMMISSIONER

 1   [2011] FWAFB 6772

 2   Galintel Rolling Mills Pty Ltd T/A The Graham Group [2011] FWAFB 6772, [38]

 3 Fair Work Amendment Act 2012

 4   [2013] FWC 3161

 5   [2013] FWC 3161

 6   Shape Shopfitters Pty Ltd, [2013] FWC 3161, [10] - [12]

 7   Shape Shopfitters Pty Ltd, [2013] FWC 3161, [13]

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