Central Australian Aboriginal Congress Aboriginal Corporation T/A Central Australian Aboriginal Congress
[2022] FWC 1472
•21 JUNE 2022
| [2022] FWC 1472 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Central Australian Aboriginal Congress Aboriginal Corporation T/A Central Australian Aboriginal Congress
(AG2022/1466)
| COMMISSIONER PLATT | ADELAIDE, 21 JUNE 2022 |
Application for approval of the Central Australian Aboriginal Congress Enterprise Agreement 2022-2025 – Notice of Employee Representational Rights not in the form required by s.174(1A) of the Act – whether minor procedural or technical error - application dismissed.
An application has been made for approval of an enterprise agreement known as the Central Australian Aboriginal Congress Enterprise Agreement 2022-2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Central Australian Aboriginal Congress Aboriginal Corporation T/A Central Australian Aboriginal Congress (the Applicant). The agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 20 May 2022.
On 24 May 2022, a conference was conducted by teleconference, in which I sought clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.
On 27 May 2022, the Applicant provided a submission and undertaking. On 30 May 2022, the parties were advised that I was concerned that, on the information provided, the following pre-approval requirements had not been satisfied:
· Distribution of the Notice of Employee Representational Rights (NERR) in the form required by s.174(1A) of the Act.
· The possible inclusion of casual employees who were not entitled to vote for the Agreement on the basis that they had not been engaged during the access period.
On this basis, the matter was set down for Hearing, with any other material in support of the approval of the application to be filed by 8 June 2022.
On 8 June 2022, the Applicant provided further submissions. Neither the United Workers’ Union (UWU), the Australian Nursing and Midwifery Federation (ANMF) nor the Australian Salaried Medical Officers Federation (ASMOF) provided written submissions or evidence. However, the UWU and the ANMF both indicated support of the Applicant’s position at the Hearing.
A Hearing, by telephone, was conducted on 10 June 2022. Mr Brett Capes appeared on behalf of the Applicant, Ms Erina Early appeared on behalf of the UWU, and Mr Shane Klein appeared on behalf of the ANMF.
No witness evidence was presented at the Hearing. The Applicant made oral submissions.
In respect of the issue raised by the participation of casual employees who were not employed during the access period, I am satisfied that even if I removed the equivalent of votes in favour of approval potentially made by ineligible voters, the proposed Agreement would still have been approved by a simple majority of those who cast a ballot. Accordingly, I do not consider the inclusion of casual employees who were not entitled to vote to be an issue which prevents me from approving the Agreement.
The remaining pre-approval issue is the deficiency in the form of the NERR.
The relevant evidence is not in dispute. The Applicant issued the NERR on 9 March 2021. The NERR was deficient in that it did not include the following paragraph:
“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”
The Applicant was unable to explain the reason that the above paragraph was not included in the NERR distributed on 9 March 2021. The Applicant postulated that it may have been an error in the NERR creation tool included on the Commission’s website. After seeking further information within the Commission (a copy of which was provided to the Applicant), I am satisfied that it is not possible that the Commission’s NERR creation tool was capable of excluding this paragraph. This paragraph remains part of the NERR despite any information put into the NERR creation tool. In any event, the NERR creation tool is provided to assist parties and does not obviate compliance with s.174(1A) of the Act.
In the alternative, the Applicant contends any deletion was inadvertent, and given that the Applicant encouraged Union representation to its employees throughout the bargaining process, I should accept that this is a “minor procedural or technical error”, and I should exercise my powers under s.188(2) of the Act to approve the Agreement.
I accept the submission that the omission was inadvertent.
The Applicant advised that in evaluating the omission, I should take into account a variety of information, which is summarised below:
· On 8 March 2022, prior to the distribution of the NERR, Mr Brett Capes (General Manager Human Resources) sent an email to all staff titled “Notification of EBA Negotiations”, which included the following statement:
“A Notice of Representational Rights will be sent by email later this week as an official invitation to nominate yourself, a union or another staff member as your Bargaining Representative for this process.” (emphasis added)
· This email also contained a letter from the CEO of the Applicant, Ms Donna Ah Chee, which contained the statement:
“You will receive a Notice of Representational Rights by email later this week as an official invitation to nominate yourself, a union or another staff member as your Bargaining Representative…Note, the relevant Union represents its members in negotiations unless you notify HR in writing that you nominate alternative representation.” (emphasis added)
· On 9 March 2021, Ms Carla Romberg (Manager Employee Relations), in an email which attached the NERR, stated:
“As indicated yesterday with the notification letter for EA negotiations, please find attached Schedule 2.1 – Notice of Employee Representational Rights. This is the official invitation to nominate yourself or a union to be a bargaining representative.” (emphasis added)
· On 12 March 2021, an internal newsletter was distributed to employees which invited employees to nominate “yourself or a union to be a representative during this process.” (emphasis added)
· The other documents provided were not communications to employees.
Consideration - content of the NERR
Despite accepting that the material was omitted inadvertently, it remains that an error has occurred as the Applicant has failed to comply with the procedural requirement in s.174(1A) of the Act. Section 174(1B) of the Act also requires that the Regulations ensure that the NERR contain certain information. Section 174(3) concerns information about default bargaining representatives. These provisions are extracted below:
“174 Content and form of notice of employee representational rights
…
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.
…
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a)if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b)the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.”
In a Decision of the Full Bench of the Commission in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy (CFMEU)[1], the Full Bench explored the requirements of s.174(1A) of the Act:
“[18] Subsection 174(1A) uses language in mandatory form and goes to some length to make it clear that there can be no departure from the content or form of the Notice prescribed in the Regulations. As mentioned earlier, s.174(1A) provides that a Notice must contain the prescribed content, must not contain any other content and must be in the form prescribed.
[19] The clear and unambiguous meaning of the words of s.174(1A) is entirely consistent with the context and mischief to which the provision is addressed.
[20] As to the context, the Notice provides employees with important information about the nature of an enterprise agreement and the employees’ right to appoint a bargaining representative to assist them in bargaining for the agreement or in a matter before the Commission about bargaining for the agreement. The Notice sets out the default position for union members, that is, they will be represented by their union if they do not appoint a bargaining representative.
[21] Bargaining representatives perform an important role in the negotiation of an enterprise agreement. Section 228 sets out the ‘good faith bargaining requirements’ that must be met during the bargaining process. Importantly, the employer must ‘recognise and bargain’ with other bargaining representatives (s.228(1)(f)); ‘give consideration’ to the proposals of other bargaining representatives and respond to those proposals in a timely manner (s.228(1)(c)), giving reasons for their responses (s.228(1)(d)). A bargaining representative may apply to the Commission for a bargaining order under s.230 in relation to the agreement (s.229(1)). An employee organisation that was a bargaining representative for the proposed enterprise agreement has an entitlement to be covered by the agreement (see s.183(1) and 201(2)).
…
[25] The general objects of the Act are also an important contextual consideration. One of the objects of the Act is ‘enabling fairness and representation at work ... by recognising ... the right to be represented’ (s.3(e)). The adoption of the clear meaning of s.174(1A) is consistent with this statutory objective.
[26] The evident legislative purpose is confirmed by the legislative history and the relevant extrinsic materials.
[27] Subsections 174(1A) and (1B) were enacted by the Fair Work Amendment Act 2012 (the 2012 Amendment Act) (see Schedule 4, item 8). The relevant extract from the Explanatory Memorandum to what became ss.174(1A) and (1B) states:
“145. Under the FW Act employees are entitled to be represented in bargaining for a proposed enterprise agreement by a bargaining representative of their choice, including an employee organisation. The FW Act requires an employer to give notice to each employee to be covered by a proposed enterprise agreement of their right to be represented in bargaining for an enterprise agreement by a bargaining representative. Section 174 of the FW Act provides for the content and form of notice of employee representational rights.
146. Item 8 would insert new subsections 174(1A) and 174(1B) to provide that a notice of employee representational rights must only contain the content prescribed by the regulations (which must comply with the requirements of section 174), must not contain any other content and must be in the form prescribed by the regulations. Item 7 would amend the heading to section 174 to clarify that the section deals with both content and form requirements.
147. This amendment responds to Panel recommendation 19. The amendment is intended to eliminate confusion about whether employers may modify the content or form of the notice of employee representational rights. The amendment would make clear that the notice must contain only the content prescribed by the regulations and no other content except that which the regulations require an employer to insert or omit.” (emphasis added)
[28] The emphasised text is entirely consistent with the clear and unambiguous terms of s.174(1A). The recommendation referred to in the Explanatory Memorandum is contained in report of the Panel set up to review the Act and the Workplace Relations Amendment (Transition to Forward with Fairness Act) 2008. The Panel’s report is titled ‘Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation’ (the Review Report) Recommendation 19 of the Review Report is in the following terms:
“The Panel recommends that s.174 be amended to provide a bargaining notice must address only the matters specified in that section and the regulations made under it.””
There is no doubt that the NERR issued by the Applicant in this matter was not compliant with s.174(1A) of the Act.
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.
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)[2] set 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.”
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.”
Consideration
It is clear that the NERR that was distributed does not meet the requirements of s.174(1A) of the Act. I turn now to consideration of the s.188(2) application.
One of the risks of paraphrasing the NERR in additional communications to employees is that the meaning of the terms is distorted.
The correct text of the NERR permits the appointment of a bargaining representative and does not contain the restrictions as advised in all of the Applicant’s communications emphasised at paragraph [15] above, namely, who that person (or entity) might be.
In respect of the default bargaining status of Unions, the information provided preceded the distribution of the NERR and was factually incorrect. The NERR should have stated:
“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”
In my view the statement by the CEO was not accurate or proximate to the distribution of the NERR.
The NERR is a statement of the employees’ rights, and by removing the relevant provision (albeit unintentionally), it is difficult to see how the other largely inaccurate statements can be said to remedy that defect to an extent that it becomes a minor procedural or technical error such that employees are not likely to have been disadvantaged. Some employees may have thought there were restrictions on the person (or entity) who could have been appointed as their representative. Some employees may have simply read the defective notice and not considered the preceding email and/or the subsequent communications. There is no evidence before me as to what the employees understood the position to be.
On the basis of the findings above, the pre-approval requirement in the Act to distribute the NERR with the content and in the form required by s.174(1A) of the Act has not been met, and I do not consider that the failure to comply with s.174(1A) was a minor procedural or technical error such to enliven my powers under s.188(2) of the Act. I have not considered the remaining issues with the Agreement.
The application for approval of the Agreement is therefore dismissed.
COMMISSIONER
Appearances (by telephone):
B Capes for the Applicant.
E Early for the United Workers’ Union.
S Klein for the Australian Nursing and Midwifery Federation.
Hearing details:
Adelaide
2022:
10 June.
[1] [2014] FWCFB 2042.
[2] [2019] FWCFB 318
Printed by authority of the Commonwealth Government Printer
<PR742538>
0
2
0