Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2019] FWC 8000

[2019] FWC 8000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2019/2384)

DEPUTY PRESIDENT MASSON MELBOURNE, 25 NOVEMBER 2019

Application for approval of the Reactive Fire Services Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015 - 2019.

[1] An application has been made for approval of the Reactive Fire Services Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015 - 2019 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division – NSW Branch (the Applicant). The Agreement is a single enterprise agreement.

[2] A notice of employee representational rights (NERR) was provided by the Employer to employees on 6 June 2019 and the notice complied with the regulations. The Employer in its Form F17 states that employees were provided with access to the Agreement and information about the effect of the terms of the Agreement on 24 June 2019.

[3] The Employer further states that employees were notified of the time, place and method of voting in a meeting on 24 June 2019 and by way of a memorandum attached to employees’ payslips on 24 June 2019 and that voting occurred on 3 July 2019. A majority of those who voted approved the Agreement. 1

[4] The Employer filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test (BOOT) was the Plumbing and Fire Sprinklers Award 2010 2(the Award).

[5] The statutory declaration noted that some provisions in the Agreement were more beneficial than the Award. No less beneficial terms were identified.

[6] The Applicant filed a Form F18 statutory declaration in support of the application.

[7] In reviewing the Agreement for approval, the Fair Work Commission (the Commission) identified several concerns in relation to the Agreement and supporting documentation. These included pre-approval requirements and National Employment Standards (NES) compliance. The Commission wrote to the Applicant on 29 July 2019 and identified several issues requiring a response.

[8] The following issues were raised with the Applicant in the Commission’s correspondence dated 29 July 2019;

(1) Pre-approval concerns

(i) The notification time identified in the Employer’s Form F17 was that of 2 May 2019 and the NERR was given out on the 6 June 2019. It appeared to the Commission that more than 14 days elapsed between the notification time and the last NERR being given out, contrary to the requirements of section 173(3) of the Act.

(2) NES Concerns

(i) The Agreement failed to define shiftworkers for the purposes of the NES as required by section 196 of the Fair Work Act 2009. Given the agreement allows for night shift at clause 29, the Applicant was invited to consider providing an undertaking to address the Commission’s concern.

(ii) Clause 35.2(b) provides for the withholding of monies from an employee’s final pay in circumstances where an employee has failed to give the required notice. This may be inconsistent with the NES if the withheld monies came out of NES entitlements.

[9] In its correspondence of 29 July 2019, the Commission sought a response by the close of business on 2 August 2019. No response was received by the requested date.

[10] Further correspondence was sent by the Commission to the Applicant on 15 August 2019 noting that no response had been received to earlier correspondence. A reply was sought from the Applicant as soon as possible.

[11] A telephone call was subsequently received by Commission staff on 15 August 2019 from the identified contact person of the Applicant, Mr Theo Samartzopoulos, who advised that he would endeavour to provide a response that day or the following day. No response was received.

[12] Further correspondence was sent by Commission to the Applicant on 30 August 2019 and 10 September 2019 seeking a response to the Commission’s 29 July 2019 correspondence as soon as possible. No response was received.

[13] The Applicant’s contact person, Mr Samartzopoulos, subsequently contacted the Commission on 16 October 2019 and advised that he had previously sent through a response. Commission staff advised Mr Samartzopoulos that no such correspondence had been received to which he replied that the response would be sent later that day when he was back in his office. No further correspondence was received from the Applicant.

[14] Further correspondence was sent by the Commission to the Applicant on 13 November 2019 noting that no response had been received to earlier correspondence. A reply was sought by the close of business on 15 November 2019. The Applicant was advised that if it failed to reply by that time then the application would be “determined on the papers” and be “most likely dismissed’. No response was received from the Applicant.

[15] Because of the failure of the Applicant to respond to the matters raised by the Commission in respect of the Agreement application I now intend to deal with the application on the material before me.

Statutory Provisions

[16] Section 173 which deals with the required provision of NERRs to employees and relevantly 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.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(b) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

……………..’ (emphasis added)

[17] Section 188 prescribes when employees are held to have genuinely agreed to an enterprise agreement where it states:

‘188 When employees have genuinely agreed to an enterprise agreement

(1) 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.

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

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) 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.’

[18] Subdivision E of Division 4 of Part 2-4 of the Act sets out agreement approval requirements relating to particular kinds of employees. For the purposes of the present application section 196 which relates to shiftworkers relevantly states as follows;

‘196 Shiftworkers

Application of this section

(1) This section applies if:

(a) an employee is covered by an enterprise agreement; and

(b) a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Shiftworkers and the National Employment Standards

(2) The FWC must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Note: Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.’

Consideration

Pre-approval matters

[19] As stated at [8] above, the notification time identified in the Employer’s Form F17 was that of 2 May 2019 and the NERR was given out on the 6 June 2019. It therefore appears that more than 14 days elapsed between the notification time and the last NERR being given out, contrary to the requirements of section 173(3) of the Act. Despite being invited to do so, the Applicant failed to provide any information that would clarify the correctness of those dates. I therefore proceed on the basis of the correctness of those dates.

[20] It was made clear in Transport Workers Union of Australia v Hunter Operations Pty Ltd 3and more recently affirmed in Re Uniline Australia Ltd4 that the requirement of s 173(3) is expressed in mandatory language and that no extension of the 14-day requirement is permitted. On those authorities, the failure to provide the NERR as soon as practicable, and not later than 14 days after the notification time means that the NERR is invalid and renders the Agreement subsequently reached as incapable of approval.

[21] The above-referred authorities do however precede the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act), which among other things, amended s.188 of the Act to provide a mechanism for the Commission to conclude that an enterprise agreement has been ‘genuinely agreed’, within the meaning of s.186(2)(a), despite ‘minor procedural or technical errors’.

[22] Relevantly for the purpose of the present matter, s 188(2) would allow for the failure of the Employer’s compliance with s. 173(3) to be overcome if the Commission were satisfied firstly that the error was a ‘minor procedural or technical error’ and secondly that such error was not likely to have disadvantaged employees covered by the Agreement.

[23] In the absence of submissions and/or further material from the either Applicant or the Employer it is simply not possible for me to ascertain whether the delay in distribution of the NERR was a ‘minor procedural or technical error’ of the kind envisaged by s. 188(2) and whether such delay ‘disadvantaged’ employees. I am consequently not satisfied in the circumstances that the delayed issuing of the NERR beyond the 14-day period permitted by s. 173(3) was due to a ‘minor procedural or technical’ or that such delay did not disadvantage employees.

NES Issues

[24] The concerns raised in relation to the NES relate to provisions within the Agreement dealing with shiftwork at clauses 28 & 29, annual leave at clause 33 and notice of termination at clause 35.2.

[25] The Agreement provides for weekend work (clause 28) and the working of night shifts (clause 29). These clauses appear to allow for patterns of work that would otherwise fall under the definition of a ‘continuous shiftworker’ as defined in the Award (which is not incorporated). Clause 33 provides for annual leave in accordance with the NES however there is no definition of ‘shiftworker’ within the Agreement for the purpose of the additional week of annual leave under the NES.

[26] Having regard to the potential for shiftwork to be worked under the Agreement and the absence of a definition of shiftwork for the purpose of the NES I am not satisfied that the requirements of s 196 of the Act are met.

[27] Clause 35.2(b) provides that ‘if an employee fails to give notice, the Employer will have the right to withhold monies due to the Employer with a maximum amount equal to the ordinary time rate of pay for the period of notice.’ This appears to provide that monies could be ‘withheld’ from an employee’s final pay and may be inconsistent with the NES if such withheld monies were to be taken out of NES entitlements.

[28] Both identified deficiencies are capable of being addressed by undertakings; however, no such undertakings have been proffered despite invitations to the Applicant to consider providing such undertakings. In the absence of such undertakings it follows that the identified terms of the Agreement contravene s 55 of the Act and therefore s 186(2)(c) of the Act is not satisfied.

Conclusion

[29] In order to approve the Agreement, the Commission must, as part of its consideration, be satisfied in respect of s 55, s 173, s 186(2)(c) and s 188 requirements under the Act. For the reasons detailed above I am not satisfied in respect of those requirements. Consequently, the application for approval of the Agreement is dismissed. An order reflecting this decision will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Section 180 of the Act

 2   MA000036

 3   [2014] FWC 7469 at [76]-[79]

 4   [2016] FWCFB 4969