Bradnams Windows and Doors Pty Ltd

[2021] FWCA 7306

[2021] FWCA 7306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Bradnams Windows and Doors Pty Ltd
(AG2021/8429)

BRADNAM'S WINDOWS & DOORS PTY LTD (SOUTH EAST QUEENSLAND) ENTERPRISE AGREEMENT 2021-2023

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 24 DECEMBER 2021

Application for approval of the Bradnam's Windows & Doors Pty Ltd (South East Queensland) Enterprise Agreement 2021-2023

[1] Bradnams Windows and Doors Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Bradnam's Windows & Doors Pty Ltd (South East Queensland) Enterprise Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of The Australian Workers’ Union (AWU) and the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] Section 180(3) of the Act states:

“(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.”

[5] The vote for the Agreement took place on 4 November 2021. In accordance with s.180(4) of the Act, the access period for a proposed Agreement is the 7-day period ending immediately before the start of the voting process. The access period is therefore the period from 28 October 2021 to 3 November 2021 inclusive.

[6] I advised the parties that it appeared on the material filed with this application that notice of the vote was given on 1 November 2021, which is during the access period, not ‘by the start of the access period’, as required by s.180(3) of the Act. The question then arose, did the Employer take all reasonable steps to give the employees notice. I put this issue to the Employer, to which the Employer responded:

“Following a final Union, Bargaining Rep and Applicant meeting on Wed 27 Oct 2021 at 136 Zillmere Road, Boondall, the Bargaining Reps met with the Employees who were provided with copies of the Agreement and access to a copy of the Award on 27 October 2021 to start the 7 day access period on Thurs 28 Oct 2021. The vote was undertaken on 04 November 2021. Copy of e-mail regarding Voting attached.”

[7] I indicated to the Employer that the response provided did not address the issue of the fact that employees were not informed of the details of the vote until 1 November 2021. I advised it is my normal practice to require the Employer to provide written communication to the employees covered by the Agreement asking each of them to write to my Chambers to provide any views as to whether they consider that they were disadvantaged by an apparent error in relation to the requirements set out in s.180(3), for the purpose of deciding whether to exercise the discretion in s.188(2) of the Act to approve an agreement if it would have been genuinely agreed to but for minor procedural or technical errors made in relation to certain requirements in the Act relating to the making of enterprise agreements.

[8] I invited the parties to advise their views as to whether I should direct the Employer to send correspondence to employees covered by the Agreement regarding the above matters. The Employer and the AWU wrote to my chambers to advise they did not consider that this process should be undertaken. Each party referred to copies of the Agreement having been provided to employees on 27 October 2021, before the start of the access period, however, their responses did not squarely address the issue of the provision of the details of the vote.

[9] The three employee bargaining representatives wrote to my chambers to advise that a meeting took place on 27 October 2021 and that copies of the Agreement were provided to staff. Two of the employee bargaining representatives indicated that, on 28 October 2021, employees were advised of the time of the vote, however, there was no information provided as to whether employees were also notified on 28 October 2021 about the place or method of the vote.

[10] I advised the parties that s.180(3) of the Act appears not to have been met. That is, by the start of the access period, the employees need to be provided with the time and place at which the vote will occur, and the voting method that will be used. I directed the employer to forward correspondence from my Chambers to employees covered by the Agreement explaining the issue of the provision of details of the vote, the matters set out in s.188(2), and inviting employees to provide any views by 21 December 2021 as to whether they considered they were likely to have been disadvantaged by not being provided with details of the vote until 1 November 2021. The Employer complied with this direction. One employee wrote to my Chambers to advise that they had no concerns.

[11] I am satisfied that s.180(3) of the Act was not met in this application. Employees were not notified of the time and place of the vote, and the method that would be used, by the start of the access period for the Agreement. As noted above, s.188(2) of the Act gives the Commission a discretion to approve an agreement if it would have been genuinely agreed to but for minor procedural or technical errors made in relation to certain requirements in the Act relating to the making of an enterprise agreement, of which the requirement in s.180(3) is one (see s.188(1)(a)(i)). At the latest, employees were notified of details of the vote by 1 November 2021. At the earliest, employees were notified of the details on 28 October 2021, however, as noted above, it is not entirely clear whether the notice given on 28 October 2021 included notice of the place and method of the vote.

[12] In any event, a procedural error made in relation to the requirement in s.180(3) can be ameliorated by a finding that employees were not likely to have been disadvantaged by the error. I have given the employees covered by the Agreement an opportunity to provide views as to this issue and no employees have raised concerns. I am therefore satisfied that employees covered by the Agreement were not likely to have been disadvantaged by the error, and that the Agreement would have been genuinely agreed to by the employees covered by the Agreement but for the error.

[13] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[14] The AWU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the AWU.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 December 2021. The nominal expiry date of the Agreement is 31 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE514462  PR737160>

ANNEXURE A