Boral Resources (Country) Pty Ltd
[2011] FWA 6796
•3 OCTOBER 2011
[2011] FWA 6796 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Boral Resources (Country) Pty Ltd
(AG2011/2303)
COMMISSIONER RYAN | MELBOURNE, 3 OCTOBER 2011 |
Boral NSW Country Batch Plant Operators Enterprise Agreement 2011.
[1] Application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Boral Resources (Country) P/L for approval of the Boral NSW Country Batch Plant Operators Enterprise Agreement 2011 (the agreement). The application for approval was supported by a Statutory Declaration (Form F17) of Mr Robert Giddings, Regional Manager - Concrete (NSW/ACT) on behalf of Boral Resources (Country) P/L (Boral).
[2] The Form F17 identified that on 18 November 2010 a “bargaining pack” was given to employees as part of the process in which Boral gave employees the Notice of Employee Representational Rights required by s.173 of the Act. The “bargaining pack” contained a covering letter to employees, A Question and Answer Sheet, a copy of the Notice of Employee Representational Rights (NOERR), a proforma Notice to Appoint a Bargaining Representative and a proforma Notice to Revoke a Union as a Bargaining Representative.
[3] The Form F17 also identified that a “pack” of information was mailed to each employee on 1 August 2011, which contained a covering letter, a copy of the agreement, a copy of the award, a summary of the agreement, a ballot paper and a reply paid envelope.
[4] At my request Boral filed with the Tribunal a copy of each pack of information.
[5] The F17 identified that of the 71 employees who would be covered by the agreement and who were entitled to participate in the postal ballot to approve the agreement, 42 valid votes were received. I sought clarification from Boral in relation to the number and date of any invalid votes received by Boral. I was advised by Boral that 9 postal votes were received after the close of the ballot and were considered to be invalid votes. I was also advised that each of the 9 invalid votes was a “Yes” vote in favour of approval of the Agreement.
Bargaining Representatives - Division 3 of Part 2-4 of the Act
[6] The bargaining process for the making of enterprise agreements is (except for greenfields agreements) predicated upon the role of bargaining representatives. The employer is its own bargaining representative but the employer can also appoint another person as its bargaining representative. Employees have the right to be represented in bargaining for an enterprise agreement.
[7] To ensure that employees understand their capacity to be represented in bargaining for an enterprise agreement, the Act provides in s.173 that an employer must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee.
[8] Section 174 of the Act sets out the requirements of the notice that must be given under s.173. Secction 174(6) makes clear that both the content and form of the notice required to be given under s.173 may be prescribed by the Regulations. The form and content of the NOERR has been prescribed through Regulation 2.05 and Schedule 2.1 of the Fair Work Regulations.
[9] Section 176, which immediately follows s.174, identifies 4 classes of person who are bargaining representatives for an enterprise agreement.
[10] The first two types of bargaining representative identified by paragraphs 176(1)(a) and (b) are bargaining representatives who are not appointed but whose status as a bargaining representative is determined by the operation of s.176.
[11] The first of these two statutorily created bargaining representatives is the employer.
[12] The second statutorily created bargaining representative is an employee organisation in respect of employees of the employer who are members of the employee organisation (subject to the qualifier in s.176(3)). The statutorily created status of an employee organisation as a bargaining representative is qualified as to duration in that the status is removed if an employee either appoints another person as their bargaining representative or revokes the status of the employee organisation as a bargaining representative. However until either of these events occur the statutorily created status of an employee organisation as a bargaining representative remains.
[13] The third and fourth class of bargaining representative are those persons appointed respectively by employees or the employer to represent the employee or employer in bargaining.
[14] Section 178, which immediately follows s.176, deals with instruments of appointment of a bargaining representative.
[15] Section 178A provides for the revocation of appointed bargaining representatives and the revocation of the status of an employee organisation where the employee organisation was a bargaining representative by virtue of the operation of s.176(1)(b).
[16] Whilst it is not explicitly provided for in the structure of Division 3 of Part 2-4 it is clear from the plain language of the several provisions of Division 3 of Part 2-4 that where a bargaining representative has had its appointment or status revoked by an employee then the employee is free to appoint another or even the same bargaining representative at a later time during the bargaining period.
[17] Equally the plain language of Division 3 of Part 2-4 permits a bargaining representative to be appointed at any time whilst the bargaining process is underway. The bargaining process only concludes once employees have voted to approve an enterprise agreement.
The Bargaining Pack issued by Boral
[18] The covering let sent to each employee on 18 November 2011 identified the 4 documents which made up the pack and then made the following statement:
‘Any:
● Notice to Appoint a Bargaining Representative
● Notice to Revoke a Union as the Bargaining Representative
must be returned to Boral by close of business 30 November 2011. The self addressed envelope is for this purpose.’
[19] For Boral to impose a deadline on employees exercising their right to appoint a bargaining representative or to revoke the status of the employee organisation who would otherwise be the default bargaining representative is conduct which both misrepresents the rights of employees and is conduct which undermines the purpose of and effect of the NOERR as set out in Schedule 2.1 of the Fair Work Regulations.
[20] The Bargaining Pack also contained a 2 page document titled “New Fair Work Bargaining System Questions and Answers”. Under the guise of assisting employees understand the process for appointing bargaining representatives and the role of bargaining representatives Boral has provided information which, through both omission and inclusion, is wrong and misleading.
[21] The Question and Answer document contains the following:
‘Once appointed can I change my bargaining representative.
The new Fair Work Bargaining System does not make provision for this to occur.’
[22] This statement is blatantly wrong and would significantly mislead any employee reading it.
[23] In the context of this matter the employers Form F17 declares that the proposed enterprise agreement will replace an existing workplace agreement which in turn clearly identifies the presence and role of The Australian Workers’ Union (AWU) at the workplace. In such circumstances the Question and Answer sheet failed to make clear at the outset that the employer already had an obligation to bargain with the AWU as a default bargaining representative even before any employee exercised a right to appoint a person as their bargaining representative. The presence and role of the AWU as a default bargaining representative was not mentioned in the Question and Answer document.
[24] Merely inserting the contents of Schedule 2.1 of the Fair Work Regulations into the bargaining pack does not in my view constitute compliance with s.173 of the Act, where Boral has through the remainder of the bargaining pack misled employees as to statutory rights that the employees have and as to the facts which are relevant to the bargaining process.
The Pack of Material Issued by Boral on 1 August 2011
[25] On 1 August 2011 Boral sent to each employee a pack of information containing a covering letter, a copy of the proposed Agreement, a copy of the Premixed Concrete Award 2010, a one page document titled ‘Key Features of the Proposed New Boral NSW Country Batch Plant Operators Enterprise Agreement 2011’, a Voting Slip and a reply paid envelope for return of the completed Voting Slip.
[26] I note that the covering letter to employees contained a clear direction that the ballot for approval of the Agreement would open on Friday 12 August 2011 and close on Friday 19 August 2011 and that employees must not cast a vote earlier than 12 August 2011. I specifically sought information from Boral as to whether any votes were received before 12 August 2011 and was advised that none had.
[27] I have considered the application in this matter in light of the decision in [2011] FWA 1627 which dealt with a similar circumstance to the present matter. I adopt what I said in that decision in relation to the sending of a pack of information to employees by an employer when the pack of information is addressing the requirements on the employer arising under ss 180(2), 180(3), 180(5) and 181.
[28] In the present matter the access period for the purposes of s.180(4) commenced on 25 July 2011. As the information pack was only sent out to employees on 1 August 2011 there was therefore non compliance by Boral with the requirements of s.180(2)(a), 180(2)(b) and 180(3) of the Act. Non compliance with any one of ss.180(2)(a), 180(2)(b) or 180(3) means that the employer could not, because of s.180(1), make a request under s.181(1) to employees to approve the agreement and thus the employees could not make the agreement by voting for it under s.182.
[29] Therefore there is no valid application before the Tribunal. I dismiss the application.
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