Dongwha Australia Pty Ltd
[2024] FWCA 803
•4 MARCH 2024
| [2024] FWCA 803 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Dongwha Australia Pty Ltd
(AG2023/4119)
DONGWHA AUSTRALIA ENTERPRISE AGREEMENT 2023
| Timber and paper products industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 4 MARCH 2024 |
Application for approval of the Dongwha Australia Enterprise Agreement 2023 – enterprise agreement approved
Overview
An application has been made for the approval of an enterprise agreement to be known as the Dongwha Australia Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Dongwha Australia Pty Ltd (Dongwha/Employer). The Agreement is a single enterprise agreement.[1]
Dongwha relies upon the following documents in support of the approval of the Agreement:
a) Form F16, dated 30 November 2023 (filed 6 November 2023);[2]
b) Form F17A, dated 2 November 2023 (filed 6 November 2023), relevantly attaching the (4 page) October 2024 Employee Information Sessions Document (EIS Document);
c) Statement of Ms Ingrid Amelia Clayton-Horne, Human Resources Professional, dated 21 December 2023;[3]
d) Dongwha’s Outline of Submissions, dated 21 December 2023; and
e) Email response to Chambers regarding the Commission’s Checklist dated 6 February 2024 (12:21pm), with Undertaking dated 25 January 2024.
By way of Form F18 dated and filed 6 November 2023, the Construction, Forestry and Maritime Employees Union (CFMMEU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. The CFMMEU neither supports nor opposes the approval of the Agreement.
By way of Form F18A dated 3 November 2023 (filed 9 November 2023), Mr John Rolph, employee bargaining representative, objects to the approval of the Agreement on the basis that it has not been “genuinely agreed”.[4] The initial particulars to this objection are set out in correspondence from Mr Rolph (attached to the Form F18A) dated 30 October 2023 to Mr Gambino (Hyunseog Kim), General Manager, Dongwha. Mr Rolph also relies upon his various letters to the Commission dated 1 December 2023, 8 December 2023, 22 December 2023 (with annexures), and 10 January 2024.[5]
The Agreement was first put to a vote of relevant employees on 16 June 2023. A majority of employees who cast a vote declined to approve the Agreement (around 67% of employees voted ‘no’). The Agreement (in essentially identical form) was again put to a vote of relevant employees on 24 October 2023, and a majority of employees who cast a vote agreed to approve the Agreement (around 66% of employees voted ‘yes’ to approve the Agreement). The Agreement was then lodged for approval with the Fair Work Commission (Commission) on 6 November 2023.
Post Directions being issued programming the matter for hearing, a hearing was conducted via Microsoft Teams Video on 24 January 2024. At the hearing, Ms Janet Gilbert, Solicitor, Timber Trade Industrial Association, appeared for Dongwha, and Mr Rolph appeared as a bargaining representative.
What are Mr Rolph’s objections?
As best as I can understand it from Mr Rolph’s various pieces of correspondence to the Commission, and his oral submissions at the hearing,[6] the substance of Mr Rolph’s objections to the approval of the Agreement, are:
a) Issue 1: At the conclusion of a negotiation meeting with bargaining representatives on 10 October 2023, Dongwha advised those present that it considered that negotiations for the Agreement had concluded, and that it would be putting the Agreement to a vote of relevant employees to determine whether or not they approve the Agreement. This is despite Mr Rolph (on behalf of the employees who appointed him to be their bargaining representative) not agreeing to conclude negotiations, or to have a vote occur. As a result of Dongwha unilaterally ceasing negotiations on 10 October 2023, Dongwha has not bargained in good faith, and has denied the purported right/s of employees to:
·continue negotiations about outstanding issues;
·submit alternative proposals to Dongwha for due consideration; and/or
·apply to the Commission for assistance by way of conciliation and/or agreed arbitration to resolve outstanding differences between the parties.
b) Issue 2: Dongwha made it compulsory for employees to attend upon company enterprise agreement information sessions to explain the terms and the effect of the terms of the Agreement. Further, Dongwha held its information sessions to explain the terms and the effect of the terms of the Agreement on 23 October 2023, being one day before the vote, thus removing any black-out period on company information prior to the vote, and denying relevant employees the ability to raise any questions or queries about the Agreement prior to the vote (with management or their relevant bargaining representative).
c) Issue 3: Dongwha did not include, or omitted, a reference to the specific percentage increase amount of 5.75% in the Agreement (notionally)[7] effective from 1 March 2024 to both wages and the “combined allowance”.[8] In other words, despite wages and the combined allowance actually increasing under the Agreement by 5.75% from 1 March 2024, the concern of Mr Rolph is that this specific percentage amount of “5.75%” is not referred to in the Agreement, meaning employees may have not been aware of, or had to work out for themselves, what the percentage increase was under the Agreement was (effective 1 March 2024).
d) Issue 4: The turnaround of ‘yes’ votes between the ballots held on 16 June 2023 and 24 October 2023 is unexplained, and suggests a covert inducement was made to employees to reverse their vote from ‘no’ to ‘yes’. This is especially so in circumstances where employees were being asked the same question in both ballots, to approve the same enterprise agreement.
e) Issue 5: Relevant employees did not know or understand what they were voting to approve or reject on 24 October 2023 in circumstances where relevant employees were expressly told (and misled) by Dongwha that they are employed under a “modern award”, and not the Dongwha Australia Enterprise Agreement 2019[9] (2019 EBA).
Resolution of Issue 1
There is no provision of the Act that suggests or requires that bargaining representatives for a proposed agreement must settle all (or even a majority of) matters in dispute during bargaining before relevant employees are asked by an employer to vote to approve or reject a proposed enterprise agreement. Nor is there any provision of the Act that suggests or requires that the employer, and relevant employee bargaining representatives, must agree for such a vote to occur. It follows that there is no substance (as a matter of law) to Mr Rolph’s contentions in relation to Issue 1, and I therefore reject it as an issue that prevents the Commission from approving the Agreement. Indeed, it is contrary to s.181 of the Act (and the employer’s workplace right contained therein) to suggest that an employer cannot make a request of relevant employees to vote upon a proposed enterprise agreement.[10]
Resolution of Issue 2
Noting the requirements of ss. 180, 186(2)(a) and 188 of the Act as they apply to Dongwha, I take no issue with Dongwha making it compulsory for relevant employees to attend company enterprise agreement information sessions. The fact that such information sessions were conducted the day prior to the vote taking place, on the evidence before me,[11] raises no issues or concerns. The changes between the 2019 EBA and the Agreement are not substantial. On one view, employees were provided with at least a week to review and consider the terms of the Agreement, and thus be better prepared and informed at the company information sessions conducted the day before the vote. All in all, I reject Issue 2 as being an issue that would prevent the Commission from approving the Agreement in the facts and circumstances of this case.
Resolution of Issue 3
The Agreement provides for a 5.75% increase to the wages and the combined allowance, i.e. above the current or applicable rates of pay and combined allowance set out in the 2019 EBA. The EIS Document clearly explains this to employees. In my view, the fact that the Agreement itself does not contain a reference to the percentage increase amount being “5.75%” is of no moment. I reject Issue 3 as being an issue that would prevent the Commission from approving the Agreement.[12]
Resolution of Issue 4
There is no evidence of any inducement, covert or otherwise, made to employees who cast their vote on 24 October 2023. On the evidence before me,[13] I consider that the likely reasons for employees voting to approve the Agreement on 24 October 2023, despite voting against the approval of the Agreement on 16 June 2023, is clearly explained.[14] I therefore reject Issue 4 as being an issue that would prevent the Commission from approving the Agreement.
Resolution of Issue 5
A false or incorrect representation by an employer in the course of bargaining for an enterprise agreement may constitute a reasonable ground for believing under s.188(c) of the Act that an enterprise agreement has not genuinely been agreed to by employees if it could reasonably be expected to have had the effect of deceiving those employees into voting for something which, if they had known the true position, they would not have voted for.[15] However, genuine agreement under s.188(c) of the Act is to be assessed by reference to the relevant circumstances existing as at the date that relevant employees vote for and thereby make an Agreement (in this case, 24 October 2023), taking into account relevant information provided to employees in the lead up to that date.
The salient facts of Issue 5 are as follows:
a) Relevant employees at Dongwha have been engaged pursuant to the terms of an enterprise agreement since November 2012.[16]
b) Despite an enterprise agreement applying to relevant employees since November 2012, such employees have (also) at all times been “covered” by the Timber Industry Award 2020 (including its previous iterations).[17]
c) The statement that “DWAU employees are under the Modern Award” is false or incorrect to the extent that it suggests that a modern award “covers” and “applies” to such employees. In short, the correct technical position is that the Timber Industry Award 2020 covers relevant employees, but the 2019 EBA applies to them.[18]
d) Despite the EIS Document stating that “DWAU employees are under the Modern Award”, the EIS Document read as a whole clearly identifies that the relevant statements made therein concern the Agreement, and the changes being made to the Agreement that above and beyond, or when compared to, the 2019 EBA.
In view of the matters set out in the foregoing paragraph, I do not accept that it could reasonably be expected that the statement “DWAU employees are under the Modern Award” would or did have the effect of deceiving relevant employees into voting for something which, if they had known the true position, they would not have voted in favour of. I therefore reject Issue 5 as being an issue that would prevent the Commission from approving the Agreement.
Summary
In rejecting Issues 1 through 5 as being matters that would prevent the Commission from approving the Agreement, on the evidence and submissions before me,[19] I find that the Agreement was genuinely agreed to by relevant employees for the purposes of ss.186(2)(a) and 188 of the Act. As for all other requirements for approval of the Agreement, my decision deals with same in the remaining paragraphs that follow, having regard to, or on the basis of, the evidence and other materials before me.[20]
Undertakings
The Employer has provided written undertakings dated 25 January 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Timber Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.[21]
Coverage of employee organisation
The CFMMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.
Conclusion
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[22]
I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 March 2024. The nominal expiry date of the Agreement is 1 March 2027.
DEPUTY PRESIDENT
Appearances:
Ms Janet Gilbert, Solicitor, Timber Trade Industrial Association, appeared for Dongwha Australia Pty Ltd (Applicant).
Mr John Rolph appeared as an employee bargaining representative.
There was no appearance by the Construction, Forestry and Maritime Employees Union.
Annexure A
[1] Notification time: November 2022; Agreement made: 24 October 2023.
[2] I take no issue with the Form F16 being incorrectly dated 30 November 2023.
[3] Exhibit A1.
[4] Form F18A, signed by Mr Rolph, dated 3 November 2023, in response to Question 5 (p.3 of Form F18A).
[5] Transcript, PN15-PN89.
[6] Ibid, PN144-PN147, and PN156-PN158.
[7] See s.54(1) of the Fair Work Act 2009 (Act).
[8] This 5.75% wage increase is a 5.75% wage increase on the rates of pay under the Dongwha Australia Enterprise Agreement 2019 [2019] FWCA 5994 (29 August 2019), AG2019/2405, AE505053, PR711785. per Bissett C. See also correspondence from Mr Rolph to Mr Gambino (Hyunseog Kim), General Manager, dated 18 October 2023, and response from Kyong Seok Min, HR Manager, Dongwha.
[9] Dongwha Australia Enterprise Agreement 2019 [2019] FWCA 5994 (29 August 2019), AG2019/2405, AE505053, PR711785. per Bissett C.
[10] Subject, of course, to compliance with relevant statutory requirements. Note decision of O’Callaghan J of the Federal Court in Health Services Union v Dorevitch Pathology [2017] FCA 1200, at [22]-[25]. See also Dongwha’s Outline of Submissions, dated 21 December 2023, at [20]-[21].
[11] Statement of Ms Ingrid Amelia Clayton-Home, 21 December 2023, at [10]-[21]. Note also Dogwha’s oral submissions: Transcript, PN124-PN134, and Dongwha’s Outline of Submissions, dated 21 December 2023, at [16]-[19], [22]-[31], and [35]-[38].
[12] Note Statement of Ms Ingrid Amelia Clayton-Home, 21 December 2023, at [10]. Note also Dogwha’s oral submissions: Transcript, PN135-PN137.
[13] Statement of Ms Ingrid Amelia Clayton-Home, 21 December 2023, at [10]-[21]. Note also Dogwha’s oral submissions: Transcript, PN103-PN107, PN116-PN119, PN124-PN140, PN149-PN152.
[14] Note Dongwha’s Outline of Submissions, dated 21 December 2023, at [16]-[19], [22]-[31], and [35]-[38].
[15] Grocon Pty Ltd Enterprise Agreement (Victoria) PR927672, at [45]-[47], [52]-[53]; Manfield Colair and CEPU Electrical Division Northern Territory Enterprise Agreement Gove Alumina Refinery and Mine Site - 2010/2012 [2011] FWAA 9129, at [24].
[16] [2012] FWAA 9391; [2015] FWCA 5907; [2019] FWCA 5994.
[17] See ss. 47, 48, 52, 53 and 54 of the Act.
[18] See Clause 3 of the Dongwha Australia Enterprise Agreement 2019 [2019] FWCA 5994 (29 August 2019), AG2019/2405, AE505053, PR711785. per Bissett C.
[19] As set out at paragraph [2] of this decision, and otherwise referred to in footnotes or endnotes to this decision.
[20] Ibid.
[21] Section 190(4) of the Act has been complied with. See email response to Chambers regarding the Commission’s Checklist dated 6 February 2024 (12:21pm), and correspondence from Mr Rolph dated 23 February 2024 (received by the Commission on 26 February 2024 via mail).
[22] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 11 November 2022 (i.e. before 6 June 2023). Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.
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