BPL Adelaide Pty Limited

[2020] FWC 2570

[2020] FWC 2570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BPL Adelaide Pty Limited
(AG2020/1073)

COMMISSIONER PLATT ADELAIDE, 20 MAY 2020

Application for approval of the BPL Adelaide Pty Limited (Production and Distribution Employees) Enterprise Agreement 2020 - 2024.

[1] An application has been made for approval of an enterprise agreement known as the BPL Adelaide Pty Limited (Production and Distribution Employees) Enterprise Agreement 2020 - 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BPL Adelaide (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 28 April 2020.

[3] On 28 April 2020, my Chambers made contact with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] On 30 April 2020, the Applicant provided a submission and undertaking. On 1 May 2020, the parties were advised that I was concerned that, on the information provided, the following pre-approval requirements had not been satisfied:

•  The distribution of the Notice of Employee Representational Rights (NERR).

•  The reason(s) why the NERR was distributed more than 14 days after the notification date (20 November 2019).

•  Genuine agreement – how persons from non-English speaking backgrounds were provided with the terms of the Agreement and how the effect of the terms were explained.

[5] On this basis the matter was set down for Hearing, with formal submissions, witness statements and any other documents to be filed by 8 May 2020.

[6] A Hearing, by telephone, was conducted on 13 May 2020. Mr Alan Bull of the Australian Federation of Employers and Industries appeared on behalf of the Applicant, Mr De Rooy appeared on behalf of the United Workers’ Union (UWU), Mr Con Tselekidis, Mr Domenic Musolino and Mr Jason Lucas appeared individually in their capacity as appointed employee bargaining representatives.

[7] The Hearing was conducted by way of Determinative Conference.

[8] Witness statements were received from:

•  Mr Con Tselekidis (employee bargaining representative) 1

•  Mr Domenic Musolino (employee bargaining representative) 2

•  Mr Jason Lucas (employee bargaining representative) 3

•  Mr Ashley Williams (Union Delegate) 4

•  Mr Jamie Clarke (Union Delegate) 5

•  Ms Elizabeth Chalmers (Baiada site IR Coordinator) 6

•  Ms Sonia Takla (National Industrial Relations Manager) 7

[9] Mr Ashley Williams and Mr Jamie Clarke were not available to give evidence, however after seeking the views of all parties, I determined to receive the witness statements noting that the evidence contained therein was not tested.

[10] The Applicant also provided a written submission by email dated 7 May 2020 which also included a submission made on 30 April 2020. The submission attached a summary of the employee bargaining representatives and who they represented.

[11] I have also referred to the form F17 Employer Statutory Declaration filed by the Applicant.

[12] Following the Hearing, Mr Bull provided the following documents:

•  42 Employee Representative Nomination forms made in November and December 2019. 8

•  A list of 90 employees under the Agreement that were on leave or inactive on 11 and 12 February 2020. 9

•  A list of 530 employees under the Agreement that worked on either 11 or 12 February 2020. 10

[13] I have determined that the names of the employees contained in the above exhibits not be published pursuant to s.594 of the Act.

[14] The relevant evidence is not in dispute and is summarised as follows:

•  In mid-September 2019 the Applicant contacted the UWU to arrange for bargaining meetings to be scheduled. The first meeting was conducted on 20 November 2019 (which was also the date nominated as the notification time in the form F17).

•  The Head Office of the Applicant has prepared a NERR for distribution prior to the meeting on 20 November 2019 but due to an administrative oversight at the plant it was not distributed.

[15] As at the commencement of the negotiations there were 10 appointed bargaining representatives who represented a total of 43 employees. This does not include Mr Williams and Mr Clarke who do not appear to have been formally appointed.

[16] I have no information as to the extent of representation (as default bargaining representative) by the UWU.

[17] The statements provided by bargaining representatives indicate that at (or around) notification time they were aware generally aware of the representation information contained in the NERR.

[18] Bargaining meetings were conducted on 20 November, 9, 16, 17 December 2019, 14, 15 January, 4, 11 February 2020.

[19] I was advised by Ms Chalmers that meetings were held by Ms Takla on 11 and 12 December 2019, to explain employee rights of representation and the enterprise agreement process. Ms Takla did not detail the conduct of these meetings in her statement.

[20] On 11 February 2020 it was discovered that no NERR had been distributed.

[21] Ms Chalmers statement states that she and Ms Takla met will all employees over the two days 11 and 12 February 2020 and provided a copy of the NERR. Ms Takla’s statement indicates that the NERR was handed out (but does not assert to all employees) and was also left in lunchrooms and placed on notice boards.

[22] The Applicant is a large employer, at the time of the vote on 3 April 2020 it employed 612 persons who were eligible to vote on the Agreement. These persons are employed either on a ‘permanent’ or ‘casual’ basis.

[23] I am advised that 530 employees worked on 11 and/or 12 February 2020. I am advised that there were 90 employees who were either on leave or inactive on those dates.

[24] The content of the NERR that was distributed late is uncontroversial.

[25] No further bargaining nominations were received after the NERR was distributed.

[26] The Applicant submits that the reason for not distributing the NERR was administrative error. Ms Chalmers provided some further background in her statement. The Applicant contends that the error was remedied immediately upon its discovery and the vote delayed to allow 21 days to elapse. Whilst the Applicant did not submit that I should use my powers under s.188(2) of the Act, I have considered whether this course is appropriate.

Consideration - distribution of the NERR

[27] Section 173(3) of the Act requires an employer to provide employees with the NERR as soon as practicable, and not later than 14 days after the notification time. The notification time in this case was 20 September 2019. The NERR was distributed on 11 and 12 February 2020.

[28] I accept that the failure to distribute the NERR in the required timeframe was due to an administrative oversight in September 2019.

[29] Despite this oversight an error has occurred as the Applicant has failed to comply with the procedural requirement in s.173(3) of the Act.

[30] Whilst the Applicant sought to remedy the error as soon as it became available, some 90 employees out of 612 were not present on the dates that the NERR was distributed. The leaving of copies of the NERR on noticeboards and in the lunchroom may have ameliorated this issue, but by how much I cannot determine.

[31] It is clear to me that the Applicant has not complied with s.173(3) of the Act.

[32] It is open to the Commission, as stated in s.188(2)(a) and (b) of the Act, to be satisfied that an enterprise agreement was genuinely agreed to but for a minor procedural error and if the employees covered by the agreement were not likely to be disadvantaged by the error.

[33] In relation to the phrase ‘minor error’ the recent Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman) 11set out the following principles:

“[117] …

6. What constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. Table 2 at [74] above examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

7. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period (say 6 days before the start of the voting process) is likely to be a ‘minor error’ in most cases. But it will depend on the circumstances. If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’. Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the agreement is, in effect, a ‘roll over’ agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.

8. Whether an incidence of non-compliance is characterised as a ‘minor error’ also depends on the nature of the requirement which has not been complied with.”

[34] In relation to whether employees covered by the agreement were not likely to have been disadvantaged by the error, the Full Bench in Huntsman stated:

“[117] …

10. The test in s.188(2)(b) is whether the employees covered by the agreement were ‘not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174’(emphasis added). The impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of ‘genuine agreement’.

11. Cost or inconvenience to the employer and employee covered by an agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement ‘were not likely to be disadvantaged by the errors’.

12. The test posited by s.188(2)(b) is whether ‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’.

13. The word ‘likely’ in s.188(2(b) means ‘probable’ in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.

14. In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.”

[35] In my view, the distributing of the NERR some 72 days after the notification time and after the conduct of the majority of the bargaining process, is not a minor error as contemplated by s.188(2) of the Act.

[36] There is no evidence before me as to how many employees the United Workers’ Union represented. In my view, it is likely that a large number of employees may not have had the opportunity to attend the bargaining meetings, or consider whether to utilise their right of representation in bargaining, prior to the distributing of the NERR on 11 and 12 February 2020. Such employees are therefore likely to have been disadvantaged by the error.

[37] I now turn to the steps taken by the employer to address the adverse impact of the non-compliance. Ms Takla and Ms Chalmers gave evidence that upon realising the error, they attended site on 11 and 12 February 2020, to distribute the NERR. Whilst this approach was understandable, the distribution of the late NERR was incomplete with potentially 90 employees not receiving the same. In addition, such an approach does not ‘undo’ the disadvantage which may have occurred during the preceding 2 months of negotiations.

[38] On the basis of the findings above, the pre-approval requirement in the Act to distribute the NERR as soon as practicable, and not later than 14 days, after the notification time for the Agreement has not been met. I have not considered the remaining issues with the Agreement.

[39] The application for approval of the Agreement is therefore dismissed.

COMMISSIONER

Appearances:

A Bull of the Australian Federation of Employers and Industries on behalf of the Applicant.

M De Rooy on behalf of the United Workers’ Union.

C Tselekidis employee bargaining representative.

D Musolino employee bargaining representative.

J Lucas employee bargaining representative.

Hearing details:

2020.
Adelaide:
May 13.

Printed by authority of the Commonwealth Government Printer

<PR719416>

 1   Exhibit EBR1

 2   Exhibit EBR2

 3   Exhibit EBR3

 4   Exhibit EBR5

 5   Exhibit EBR4

 6   Exhibit A1

 7   Exhibit A2

 8   Exhibit A3

 9   Exhibit A4

 10   Exhibit A5

 11   [2019] FWCFB 318