Construction, Forestry, Mining and Energy Union

[2013] FWC 1694

[2013] FWC 1694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/351)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 19 MARCH 2013

Alfa Glass and Aluminium Pty Ltd and CFMEU - FFPD Enterprise Agreement 2011-2015.

[1] The Construction, Forestry, Mining and Energy Union made an application on 19 February 2013 for approval of the Alfa Glass and Aluminium Pty Ltd and CFMEU - FFPD Enterprise Agreement 2011-2015 pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] Mr Harry Petsios, Director of Alfa Glass and Aluminium, filed a statutory declaration (Form F17) in support of the application. Question 2.6 of the Form F17 was not properly answered.

[3] On 4 March 2013 I contacted the CFMEU and explained that as an old version of the Form F17 had been used, the response Mr Petsios gave in relation to the notice given to employees as to time and place of ballot was deficient as it did not disclose the date upon which that notice was given to employees as per the requirements of the Act.

[4] Subsequently, the CFMEU filed a new F17 declared by Mr Harry Petsios on 18 March 2013 which stated in response to question 2.6 that:

“On 4 February 2013 a notice was placed in the workplace stating the time and place of the vote and that the vote would be my (sic) a show of hands.”

And in response to question 2.8 that the date on which the Agreement was made was 6 February 2012 (sic)”.

[5] I accept that the date on which the Agreement was voted on by the employees was 6 February 2013 and not 6 February 2012.

Legislation

[6] Sections 180 and 181 of the Act are relevant and are as follows:

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(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.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[7] The combined operation of s.180(1), (3) and (4) and s.181(1) and (2) is that an employer can only ask employees to approve a proposed enterprise agreement if both of the following conditions have been met:

1 - the request that employees approve the agreement must be made at least 21 days after the last Notice of Employee Representational Rights was issued to employees (s.181(1) and (2)), and:

2 - the time place and method of voting to approve the enterprise agreement must be notified to employees at least 7 days before the vote is to occur (s.180(3) and (4)).

[8] In the present matter the conduct of the employer creates the appearance that the employer has met the requirements of s.181. However an employer can only be in a position to comply with s.181 if the employer has already complied with s.180.

[9] In the present matter the conduct of the employer makes it clear that the employer has not met the requirements of s.180(1) because of the failure of the employer to comply with s.180(3). Asking employees on 4 February 2013 to vote on 6 February 2013 does not meet the requirement of s.180(3).

[10] The consequence of not complying with s.180(3) is that the employer could not request the employees to approve the Agreement.

[11] This in turn means that the Agreement has not been made under s.182(1) which provides that:

“182(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”

[12] The Form F17 identifies that of the 5 employees eligible to vote 5 voted and all 5 voted to approve the Agreement. Even though all employees voted on 6 February 2013 to approve the Agreement the Agreement has not been “made” under s.182(1) given that the employer was not permitted to request the employees to vote on the Agreement until the employer complied with s.180(3) of the Act.

[13] As the Agreement has not been made in accordance with the provisions of the Actthere is therefore no valid application before me and I dismiss the application.

COMMISSIONER

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