Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering
[2016] FWC 5723
•31 AUGUST 2016
| [2016] FWC 5723 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering
(AG2016/1270)
COMMISSIONER SPENCER | BRISBANE, 31 AUGUST 2016 |
Application for approval of an enterprise agreement – s.586 and Regulation 2.06A(2) – discretion to approve an agreement not filed with completed signature page – particular circumstances – ss. 593 and 594 suppression of signature page and accompanying Affidavit from publication and disclosure
Introduction
[1] The application before the Fair Work Commission (the Commission) is for the approval of an Agreement, the Downer EDI Engineering Electrical Pty Ltd Southern Region Electrical Services Enterprise Agreement 2016 (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU/the Respondent) oppose the approval of the Agreement, on the basis that the Agreement, when filed, was not signed in accordance with the requirements under the Act and the Fair Work Regulations.
[2] The Agreement was not signed by an employee representative. The ETU, as a bargaining representative, had refused to sign the Agreement. The issue for consideration is whether a copy of the Agreement with the signatures completed, filed after the 14 day period for an application under s.185(3)(a), may be accepted (with an extension of time pursuant to s.185(3)(b)) by the Commission under s.586 of the Act.
[3] The signed Agreement and the Affidavit were filed with the Commission only on 11 July 2016. The Applicant had attempted to file the Agreement within the 14 day period. This is set out later. The employee who signed the Agreement filed on 11 July 2016 only undertook to sign the Agreement if his identity remained confidential. He was concerned about victimisation for signing the Agreement.
[4] Accordingly, the Applicant further sought a confidentiality Order to prohibit the disclosure or publication of the signature, name, title and address of the representative of the employee (covered by the Agreement) who signed the Agreement (and the suppression of the Affidavit of that employee) pursuant to section 593(3) and/or section 594 of the Act.
[5] The ETU objected to the amendment of the Agreement filed with the application sought under s.586. Further, the ETU objected to the suppression of the identity of the employee signatory and the publication of the Agreement without an employee’s signature, as per the requirements in Regulation 2.06A.
[6] Arising from further Directions, a copy of the employee signatory’s Affidavit, with identifying information redacted, was provided to the Respondent. In addition, a copy of the list of employees to be covered by the Agreement was provided to the Respondent. The Commission confirmed to the parties that the employee signatory appears on the list of employees to be covered by the Agreement.
[7] The Applicant was originally represented by Ms Carly Carloss, General Manager Industrial Relations, Engineering, Construction and Maintenance of the Applicant, prior to her leaving the Company on 21 July 2016. The Respondent was represented by Ms Pat Rogers, Industrial Officer of the ETU. After Ms Carloss left the Applicant, Mr Nick Le Mare, solicitor of Corrs Chambers Westgarth filed a Form F53 – Notice of Representative Commencing to Act, seeking permission to appear on behalf of the Applicant. The ETU objected to the legal representation of the Applicant, and Directions were set and a Decision was issued granting legal representation to the Applicant 1. The ETU then sought representation from Mr Luke Tiley, solicitor of Hall Payne, and permission for the ETU to be legally represented was granted.
Background
[8] On 19 May 2016, pursuant to s.185(3)(a) of the Act, the Applicant filed an application for approval of the Agreement. The copy of the Agreement filed with the application was signed by the Applicant’s representative, but was not, at the time of filing, signed by a representative of the employees covered by the Agreement. Reasons for such were provided in correspondence on behalf of the Applicant and in later submissions.
[9] The application was allocated to the Commission, as currently constituted, on 17 June 2016, however, the file reflects that, as stated by the Applicant, Ms Carloss of the Applicant, on 18 May 2016 (prior to filing the application on 19 May 2016), wrote to the Fair Work Commission’s Registry Team in Victoria. Her correspondence, entitled ‘Technical Question regarding EBA lodgement’, set out a basis for a difficulty with providing (within the 14 days after the Agreement was made) an employee representative signatory to the Agreement, at that time. She sought an assurance from the Commission, that this could be provided if the identity of an employee signatory to the Agreement, would be concealed from publication. The suppression of an employee signatory’s identity from publication had occurred with a prior Downer EDI Agreement she had filed 2. Whilst there was a reply from the Registry Team indicating that the concerns would be passed on to a Member and that a response would be provided, this did not occur, and sometime later, the file was subsequently allocated to the Commission as currently constituted.
[10] The context of the application is that the Agreement, as stated by the Applicant, was not supported by the employee bargaining representatives, including the ETU and accordingly was not signed by them.
[11] No reasons were provided by the ETU in their submissions as to why they did not support the Agreement, or why they had refused to sign the Agreement. However, in an email to Ms Carloss, dated 19 May 2016 (annexed to the Affidavit of Ms Carloss) the ETU states that they:
“…will not be signing the Agreement.
We have serious concerns about the integrity of the voting process. We will be opposing the approval of the Agreement, and will be seeking a re-vote carried out in an appropriate manner.”
[12] The ETU’s representative confirmed at the hearing that the Union’s only objections in relation to the approval of the Agreement were the acceptance of the Agreement where it was unsigned by a representative of employees at the time of lodgement and the suppression of the employee’s signature and identifying details contained in the Agreement and Affidavit filed on 11 July 2016. The Applicant confirmed that, whilst a valid number of employees voted in support of the Agreement, the Union had indicated their refusal to sign the Agreement on the 13th day of the 14 day period. It is noted that the ETU advised that their objection was based on the voting process, however, no material was put before the Commission by the ETU in relation to the voting process.
[13] A redacted copy of the Affidavit and the list of employees were provided to the ETU prior to the hearing. Final Directions for the provision of the employee’s redacted Affidavit and the list of Employees were provided as follows:
“Further to the Directions of 5 August 2016 and taking into account the further correspondence from the parties on the provision of relevant documents for the hearing, the following Directions are issued by Commissioner Spencer:
I am not currently persuaded to depart from the initial proposed course prior to the hearing of this matter. However, on consideration of the ETU’s instructions set out in Mr Tiley’s correspondence of Tuesday, 9 August 2016, I have amended the course as follows:
1. The Applicant is directed to provide a redacted copy of the Affidavit of the employee signatory to the agreement (which has now been approved by the Applicant and the Commission) to the ETU’s legal representative (with a copy to Chambers). This is provided by 12:00pm on Monday 15 August 2016 (subject to point 4). This document is provided for the purposes of allowing the ETU to conduct their case and seek appropriate instructions.
2. The Applicant is directed to provide a copy of the list of employees to be covered by the Agreement to the Commission and the ETU’s legal representative by 12:00pm on Monday 15 August 2016 (subject to point 4). This is also provided for the purposes of allowing the ETU to conduct their case and seek appropriate instructions.
3. The Commissioner will undertake the process of checking against this list, that the employee signatory, forms part of the class of employees to be covered by the Agreement.
4. The ETU’s representative is to provide, in an email to Chambers and to the Applicant, by 10:00am on Monday 15 August 2016, that they accept the documents on the basis as set out in 1 and 2 above.
5. The ETU’s legal representative is at liberty to apply to the Commission, to vary these arrangements in relation to the provision of the documents as set out. The Applicant and the ETU would be heard on this issue, if the ETU made such application, at the hearing set for Wednesday 17 August 2016, and any adjournments would be considered, if necessary.”
(emphasis added)
[14] No further application was received from the ETU, in line with the Directions above, at the hearing, seeking other versions of the documents or an adjournment regarding any prejudice in conducting their case.
Relevant Legislation
[15] The relevant legislative provisions of the Act to be satisfied in the approval of the agreement are set out in section 185(2) and 185(5):
“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement
…
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.
Signature requirements
(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.”
(emphasis added)
[16] Regulation 2.06A requires to the signing of an enterprise agreement as follows:
“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement
(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.
(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:
(a) it is signed by:
(i) the employer covered by the agreement; and
(ii) at least 1 representative of the employees covered by the agreement; and
(b) it includes:
(i) the full name and address of each person who signs the agreement; and
(ii) an explanation of the person’s authority to sign the agreement.
Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.
(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”
(emphasis added)
[17] The Fair Work Act Explanatory Memorandum was relied on as follows:
“762. Subclause 185(2) sets out the material that must accompany the application for FWA approval. The bargaining representative must provide FWA with a signed copy of the agreement and any other declarations required by the procedural rules of FWA. The requirement for a bargaining representative to provide FWA with a signed copy of the agreement is intended to ensure that the agreement that FWA considers for approval is the one that the parties have made. The power for FWA to make procedural rules about the requirements for making an application is set out in clause 609. This enables FWA to make procedural rules about the form and content of the declarations that must accompany the agreement.
For example, the procedural rules may require that the bargaining representative declare that all other bargaining representatives involved in the bargaining have been notified of the employer‘s intention to apply to FWA for approval of the agreement.”
(emphasis added)
Employee’s standing to sign the Agreement
[18] In terms of the statutory requirements of the signatory to the Agreement, the case law has established that a representative of the employees, covered by the agreement (for the purposes of Regulation 2.06A(2)(a)(ii)) need not be an employee bargaining representative, a union representative or elected or appointed in any way by employees, but can be an employee in a class of employees, who will be covered by the agreement 3.
[19] In the Full Bench Decision of McDermott Australia Pty Ltd v AMWU 4, it was noted5 in regard to Regulation 2.06A(2)(a)(ii) as follows:
“[46] What can be relevantly extracted from the above regulation is the requirement for at least one representative of the employees covered by the Agreement to sign the Agreement and provide an explanation of their authority to do so.
[47] It is noted that in the Full Bench decision Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and another v Sustaining Works Pty Limited at [30], it was determined that a failure to comply with the requirements concerning the signing of enterprise agreements in regulation 2.06A unless remedied by an amendment, meant that the agreement could not be approved by virtue of ss.185(2)(a) and 186(1) of the Act.
[48] The requirement for a signed copy of the Agreement to be attached to an approval application is explained in the Explanatory Memorandum to the Fair Work Bill 2008 at item 762. The requirement is to ensure that the agreement presented to the Commission for approval is the one actually made by the parties.”
[20] Furthermore, the McDermott Decision at [56] – [57] provides authority in the context of Regulation 2.06A and established that the representative who signs the agreement, is not required to be an appointed bargaining representative:
“[55] The interpretation of a regulation like that of a statute begins with a consideration of the ordinary meaning of its words. Regard must also be paid to the context and purpose of the provision or expression being construed. The regulation refers to a “representative of the employees covered by the agreement”. At regulation 2.06A(3) when referring to a representative it refers to an employee in a class of employees who will be bound by the agreement:
“Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”
(Our emphasis)
[56] In this case, Mr Coleman is an employee in a class of employees who will be bound by the Agreement; as such he is therefore a representative of the employees covered by the Agreement. The authority in the context of the regulation is the employee’s capacity to sign; which in Mr Coleman’s case is that he is an employee covered by the Agreement.
[57] Regulation 2.06A does not require a representative who signs the Agreement to be appointed. The Explanatory Statement cannot elevate the signature requirements to be in excess of the Regulations. While there is no reason why employees could not appoint a representative to sign on their behalf as suggested in the Explanatory Statement, it is not a mandated requirement, nor is there any prescribed process for ‘appointing’ a representative.”
[21] There was no dispute that the Agreement provided with the application, or the copy filed on 11 July 2016, is that that was actually made by the parties (the Respondent was given the Agreement that was filed on 11 July 2016, with the identifying information of the employee signatory redacted). The ETU confirmed this was the Agreement made by the parties.
[22] Accordingly, the employee signatory having been verified from the list of employees to be covered by the Agreement (also provided to the ETU), is able to be accepted as an appropriate signatory to the agreement.
Section 586
[23] The Applicant applied for the Commission to exercise the discretion, pursuant to s.586 of the Act, to allow the Agreement which was filed with the application (which did not contain a signature of a representative of the employees), to be substituted with a copy of the Agreement (filed on 11 July 2016) signed by both the Employer and a representative of employees, and to extend the 14 day time limit to this date. The Applicant also sought a suppression order to prevent the publication or disclosure of the employee signature page (and accompanying Affidavit) to suppress the signature, name, address and title of the employee signatory.
[24] The Full Bench of the Commission in the Decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Australian Manufacturing Workers' Union v Sustaining Works Pty Limited 6 (Sustaining Works), allowed for an Agreement approval application to be remedied, under s.586, in circumstances where the legislative requirements for the signatures were not met. Section 586 is extracted as follows:
“586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.”
(emphasis added)
[25] The Union sought to distinguish the current circumstances from those under consideration in the Full Bench Decision of Sustaining Works, in so far as that Decision considered an approval of an Agreement where the application was accompanied with a signed document, but that the signatory information was deficient according to Fair Work Commission Regulation 2.06A2(ii)(b).
[26] The copy of the Agreement which accompanied the application for approval in Sustaining Works was not signed in accordance with Regulation 2.06A. The Full Bench stated as follows:
“[29] The copy of the Agreement which accompanied Sustaining Works’ application for approval of the Agreement was not signed in accordance with reg.2.06A(2). It was signed by two persons “for and on behalf of the Employees”. The first of these gave his name as “C. Fabar”. That is not a full name. The “address” given was “Leightons Chinchilla”. That is not, in accordance with common understanding, an address. The second employee, Kieth [sic] Johnson, gave an “address” as “c/o Leighton Contractors”. That is also clearly not a proper address.
[30] Section 185(2) is expressed in mandatory terms. Section 186(1) empowers approval of an enterprise agreement only if “an application for the approval of an enterprise agreement is made under section 185 …”. We consider that an application “under” s.185 must be one made in accordance with it. Further, s.585 requires that “An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind”. Accordingly it is not open to the Commission to simply ignore a failure to comply with the signature requirements. Section 586 empowers the Commission to deal with errors and irregularities in applications and associated documents as follows:
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
[31] However, because the signature issue was never raised before the Commissioner, there was never any opportunity for the exercise of the power in s.586 to deal with the problem. As a result the Commissioner’s approval of the Agreement was arguably not in accordance with s.186(1) because he did not have before him an application made in accordance with s.185.
[32] Having regard to ss.604 and 607, we consider that we cannot ourselves exercise the powers available under s.586 without at least granting permission to appeal. We consider that it is appropriate to grant permission to appeal in the public interest in order to ensure that the mandatory provisions of the FW Act which we have identified are complied with. Pursuant to s.586(a), we will allow Sustaining Works to file a copy of the Agreement which is signed in accordance with the requirements of reg.2.06A(2) within 14 days of the date of this decision. Once this is done, we will exercise our power in s.607(3)(a) to confirm the Decision. In the event that some unanticipated difficulty arises, we grant liberty to apply. If a signed copy of the Agreement is not filed, we will hear from the parties further as to what course should be taken in that circumstance.”
[27] Regulation 2.06A sets out the signature requirements, including the name, address and authority to sign. These were not complied with in the circumstances before the Full Bench, such that a valid application was not filed, against the statutory tests. In Sustaining Works and later in Brockman Engineering Pty Ltd 7(Brockman), the broad discretion in s.586 was relied on to remedy the deficiency.
[28] Section 586 was relied on in Brockman by Deputy President Gostencnik, in an application for a variation of an Agreement, as follows:
“[5] On reviewing the materials, it became apparent that the application might not have been made strictly in accordance with s.210 of the Act. I advised the parties about my concerns in this regard at a further hearing on 30 June 2016 and gave the parties an opportunity to make further written submissions about the issue. I have taken the submissions into account.
[6] A substantially similar issue, albeit in an agreement approval context, arose in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Sustaining Works Pty Limited. The Full Bench (of which I was a member) took the view that it had power under s.586(a) of the Act to allow a correction to an approval application which was not accompanied by a signed copy of the agreement. I see no reason why I should adopt a different approach in the instant case.
[7] Along with its submission filed on 30 June 2016, the Applicant has filed and served a corrected copy of the signed variation agreement. In the circumstances as indicated below at [8], I will allow pursuant to s.586(a) of the Act, the correction. The variation agreement is signed by Mr Rosemeier, and his authority to sign is stated as a “representative of employees covered by the agreement”. The Unions challenge the authority, however the submissions made by them are contrary to the construction of the phrase “representative of employees covered by the agreement” adopted by a Full Bench in McDermott Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Although I have some reservations about the analysis in McDermott, I am not persuaded that the decision is plainly wrong and so I propose to follow it. Applying the analysis, Mr Rosemeier is an employee in a class of employees covered by the Agreement and is therefore a representative of employees covered by the agreement as varied. The variation Agreement was therefore signed appropriately with the result that there is now a valid application under s.210 of the Act.”
(emphasis added)
[29] The Respondent was given a separate opportunity to comment on this case and they submitted the case was distinguishable from the current circumstances. The ETU argued that s.586 could not be used in the present circumstances, where there had been no compliance with the employee signatory, unlike Sustaining Works, where there had been partial compliance.
[30] Further, the ETU argued that, while Brockman provided support for the proposition that the Commission can extend the time for the filing of a signed agreement (in the context of a variation), the power to extend time should not be exercised in the current circumstances because the delay in obtaining an employee signatory was largely attributable to the Applicant. The Applicant refuted this and indicated, when advised late in the 14 day period that the ETU would not sign the Agreement, they moved quickly to secure an alternative employee signature, however, this required a confidentiality Order to confirm the signature.
[31] The ETU also noted that the agreement variation that was ultimately approved in Brockman was signed, and therefore that Decision provided no support for the proposition that an Agreement could be approved in an unsigned form or, alternatively, approved in a signed form but the signature later redacted (or otherwise not published).
[32] The Applicant was also given the opportunity to comment on the Decision in Brockman, and submitted that that case demonstrated that it is open to the Commission to grant the Agreement approval sought, on the basis that section 586(a) allows for the correction or amendment of an application in the form of the later lodgement of an Agreement, properly signed (in accordance with Regulation 2.06A).
[33] The Applicant also submitted that Brockman, as in Sustaining Works, reflected the ability of the Commission to extend (pursuant to s.210(3) in Brockman and s.185(3) in Sustaining Works and the present case) the 14 day application period.
[34] The ETU argued that it is a mandatory term that the application must be accompanied by the signed agreement to be a valid application. Mr Tiley, on behalf of the ETU, referred to the Fair Work Act Explanatory Memorandum at [762] regarding the material which must accompany an application for approval of an Agreement under s.185(2). The Explanatory Memorandum is extracted as follows:
“762. Subclause 185(2) sets out the material that must accompany the application for FWA approval. The bargaining representative must provide FWA with a signed copy of the agreement and any other declarations required by the procedural rules of FWA. The requirement for a bargaining representative to provide FWA with a signed copy of the agreement is intended to ensure that the agreement that FWA considers for approval is the one that the parties have made. The power for FWA to make procedural rules about the requirements for making an application is set out in clause 609. This enables FWA to make procedural rules about the form and content of the declarations that must accompany the agreement.
For example, the procedural rules may require that the bargaining representative declare that all other bargaining representatives involved in the bargaining have been notified of the employer‘s intention to apply to FWA for approval of the agreement.”
(emphasis added)
[35] At the hearing, the Commissioner sought confirmation from the Respondent that the Agreement filed on 11 July 2016, was the Agreement that was made between the parties. The Respondent was provided with a copy of the Agreement filed on 11 July 2016, with the employee signature page redacted, and was given an opportunity, following the hearing, to confirm that the Agreement was that made between the parties. The Union confirmed such in writing. The ETU also confirmed at the hearing that the Agreement that was filed with the application for approval on 19 May 2016, was that which was put to employees for the vote 8.
[36] Section 185 of the Act and Regulation 2.06A stipulate that a signed Agreement must contain the signature of the employer and at least one representative of the employees covered by the Agreement and include the full name and address of each person who signs the agreement and an explanation of their authority to sign.
[37] In Sustaining Works, the signatory page of the Agreement did not contain these complete terms as required by the Act and the Regulations; the broad power in s.586(a) was used to correct those deficiencies. The discretion in this section as used, has application to the current circumstances where the signature page was completed on behalf of the Employer but not completed with a signature on behalf of the employees. The circumstances for the omission of such signature at the time, were set out by the Applicant in correspondence (as noted).
[38] The Respondent stated that what the Commission was being asked to address was more than a ‘slip’, as remedying an address or a name may have been. The Respondent made reference to the Full Bench Decision in Peter Ioannou v Northern Belting Services Pty Ltd 9(Northern Belting), and submitted section 586 cannot be used to fundamentally alter the nature of the proceedings. The Full Bench in Northern Belting stated as follows:
“[22] Having regard to these considerations, we have serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application.13 Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.”
[39] The Applicant in the current case is not seeking “to alter the nature of the proceedings” but to address deficiencies in the lodgement documents for the approval of the Agreement, supported by a majority of employees.
[40] The Applicant argued that, if the signature page is unable to be remedied in the way sought, it will open the way for, effectively, a “revolving door” with the bargaining representatives, insofar as, if they are not satisfied with the outcome of the negotiations, they can withdraw their support by refusing to sign the Agreement, even though a majority of employees have supported the Agreement at a vote. If the bargaining representatives revoke their support and do not sign the Agreement, the matter may then move in circles with the Agreement unable to be approved.
[41] In the current circumstances, it is considered that the Commission is able to accept an amended signature page. Taking into account the circumstances of the employee signatory being in the authorised class, providing the signatory in accordance with the similar course as adopted by the Full Benches and Deputy President Gostencnik in the cases cited, similarly the discretion to remedy the signatory page of the Agreement is exercised pursuant to s.586(a).
Application for extension of time
[42] The Applicant made an application for an extension of time to extend the period within which an application for approval may be made, pursuant to s.185(3)(b), as follows:
..When the application must be made
(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows...
[43] The Respondent argued that the Applicant was in the position of having filed the Agreement without the employee signatory, alleging the Applicant had sat “on their hands” and therefore the delay in making a valid application was attributable to the Applicant.
[44] The vote occurred on 6 May 2016. The chronology of events following this, as per Ms Carloss’ evidence, is as follows:
6 May 2016 The vote for the Agreement was held. A majority of those employees who cast a vote approved the Agreement, and accordingly, the Agreement was made on this day under s.182(1).
1:16pm, 16 May 2016 Ms Carloss emailed Mr Deion Menzies, Operations Manager, to request that he arrange for the relevant supervisors to have the Employee Bargaining Representatives sign the Agreement and a Form F18A.
10:11am, 17 May 2016 Mr Reid (Employee Bargaining Representative) advised in an email to Mr Craig Farrell (Services Supervisor) that he would not be signing the Agreement.
Afternoon, 17 May 2016 Ms Carloss “had a meeting … with three employees, two of which said they were willing to sign it, provided their identities were concealed. Because I told them that I may be able to achieve that, because they didn't want to sign it, for fear of repercussions of having their name on the agreement.” 10
9:25am, 18 May 2016 Ms Carloss emailed the Registry Team in Victoria as follows:
“Dear Fair Work Registry member,
Downer EDI Engineering Electrical Ply Ltd, the Employer, had a successful vote for the Downer EDI Engineering Electrical Pty Ltd Southern Region Electrical Services Enterprise Agreement 2016 (Agreement) on Friday 6th May, where the valid majority of employee voted in favour of the Agreement. Unfortunately the Employee Nominated Bargaining Representatives are declining to sign the Agreement on behalf of the employees they represent and advised the Employer to deal with their nominated Union. This union, the CEPU, have advised that they do not support the Agreement.
The Employer has attempted to secure signatures from other employees covered by the Agreement, however they have indicated that they are concerned about signing due to fears of being victimised.
On this basis, the Employer is concerned about pursuing employee signatures to support the Agreement, without being able to protect such employees identities.
With this in mind, is it possible for the FWC to waive procedural requirements and ensure that any documents filed which expose employee identities are concealed where the documents are circulated to the either the CEPU or are published when the Agreement is approved?
As without this level of protection the Employer does not feel comfortable pursuing employee signatures and will be required to lodge the Agreement on Thursday 19th May, in order to meet the 14 day lodgement timeframe.
Please do not hesitate to contact me should additional information be required to form a view, or in the alternative a written confirmation to the above request would be very helpful. As in the event this request can be facilitated, the Employer will provide this response to employees, of whom may then feel comfortable signing the required lodgement paperwork.
Your prompt response would be greatly appreciated, given the need to lodge the Agreement by COB tomorrow. The Employer apologies for the short notice, however we were hoping to have secured signatures which would have negated the need to raise this request.
Kind regards,
Carly…”
12:49pm, 18 May 2016 The Registry Team replied by email to Ms Carloss as follows:
“Dear Carly,
Thank you for your email.
We have noted your concerns and will pass them onto a Member for a response. We will be in touch shortly.
Kind Regards…”
11:47am, 19 May 2016 Ms Carloss emailed the ETU asking if they will be signing the Agreement.
3:01pm, 19 May 2016 ETU advised in an email to Ms Carloss that the ETU would not be signing the Agreement, as they had serious concerns about the integrity of the voting process. This objection was not pursued.
[45] Ms Carloss did not accept that the Employer had delayed the filing of the Agreement and stated that when she became aware that the bargaining representatives would not sign the Agreement, Ms Carloss gave evidence that:
“- - -did you ask every single employee who was covered by the agreement, to sign the agreement? Not ever employee.
How many did you not ask? I couldn't tell you because I didn't actually ask them directly. I worked through the supervision, given the employee nominated bargaining reps refused to sign, and there were two of those at the time of the request to sign. One had been made redundant through the agreement negotiation process. They had overtly said, "No, we're not signing" and there's evidence in there for the email.
…
As I understand your evidence, you don't know how many were asked or weren't asked? I can tell you how many I asked personally, but I can't tell you how many were indirectly asked, by way of the supervision.
Well, how many can you tell us, for certain, were asked? I can tell you that I asked three, because they had indicated to the supervision they were willing to meet with me to talk about it.
Thank you? --- I can't tell you how many supervision asked and what their exact responses were.” 11
[46] The Applicant also sought an extension of time for the filing of the signed Agreement on the basis that, had their enquiry been addressed urgently as to the suppression of the employee’s identity, (as was sought by the Applicant), they may have been able to file a copy of the Agreement signed in accordance with the Regulations.
[47] After the parties were notified that the matter had been re-allocated, the Applicant filed, to Chambers only, a copy of the Agreement with an employee representative’s signature, on 11 July 2016, and sought that the time for filing be extended until this date, pursuant to s.185(3)(b).
[48] For the reasons set out in terms of the Applicant’s endeavours to file a signed Agreement, the discretion pursuant to s.185(3)(b) is exercised to extend time to 11 July 2016 and under s.586(a) to accept the signed Agreement filed on 11 July 2016.
Suppression of the employee’s Affidavit and name and address on the signature page
[49] The Applicant provided a submission setting out the basis for seeking the suppression of the identity and address of the employee signing the Agreement. The employee signatory to the Agreement also provided a confidential Affidavit to the Commission only, to support the employee’s authority to sign the Agreement and provide the reasons for suppression of the employee’s identity.
[50] The Applicant sought an Order from the Commission prohibiting the publication or disclosure of the signature, name and address and title of the representative of the employees covered by the Agreement, who signed the Agreement. The application sought the suppression of the identifying details from publication with the Agreement, and also the suppression of the Affidavit of the employee, pursuant to sections 593(3) and section 594 of the Act, as set out below. Redacted copies of this Affidavit and the Agreement filed on 11 July 2016 were provided to the ETU.
“593 Hearings
…
Confidential evidence in hearings
(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:
(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the hearing.
…
594 Confidential evidence
(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in relation to the matter;
(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.
(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).”
[51] In support of this Order, the Applicant submitted as follows:
“23 This evidence establishes that a representative of the employees covered by the Agreement will only sign the Agreement as required by section 185(2)(a) and regulation 2.06A(2)(a)(ii) if the employee’s identity is not revealed to the CEPU (either before or after approval of the Agreement).
24 The Applicant accepts that the Commission is not empowered to approve the Agreement if it is not signed in accordance with regulation 2.06A(2)(a)(ii). As the Applicant has not been able to find a representative of the employees who are covered by the Agreement willing to sign the Agreement without their identity being concealed, the Agreement cannot be approved if the Commission does not make the order sought by the Applicant.
…
26 The Applicant does not seek to prohibit the publication of the identity of the relevant employee merely to avoid bringing about some embarrassment to the Applicant or the employee. Rather, it is concerned to protect the relevant employee against victimisation that the employee perceives may follow if the employee’s identity is revealed (this is a real concern, as evidenced by the confidential affidavit), and to end the stalemate created by the CEPU by refusing to sign the Agreement by enabling the Agreement made by employees to be approved by the Commission.
…
28 The Agreement has been legitimately made, the Applicant is under a legislative obligation to submit it for approval, and the bargaining representatives no longer have rights that they would otherwise have in respect of matters such as good faith bargaining orders and the right to take protected industrial action.5 At this point in the process, a process that has complied with the Act in all respects, it is contrary to the scheme of the Act for this comprehensive process and employee-determined outcome to be subverted.
29 The Commission has previously concealed the identity of the representative of the employees covered by an agreement. For example, this was ordered by Commissioner Roe (noting this was only sought at approval stage, after the employee had signed the agreement) with respect to the Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services & Minor Capital Agreement 2015-2018 12, similarly due to the employee signatory’s concerns for their well-being”
[52] Both parties cited a prior Downer EDI Agreement (the Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services & Minor Capital Agreement) that was signed by an employee representative at the time of filing, and this name was later suppressed by another Member of the Commission 13. Mr Tiley, on behalf of the ETU, noted that the approval Decision does not provide reasons for the suppression or make clear the circumstances between the parties at the time.
[53] In consideration of confidentiality Orders where intimidation is alleged, reference was also made to Deputy President Gostencnik’s recent interlocutory decision in an Anti-Bullying matter; Application by Worker A, Worker B, Worker C, Worker D and Worker D 14 where a confidentiality Order was made to protect the Applicants’ anonymity by supressing their respective names and addresses. The Deputy President stated as follows:
“[3] The dispute centres on the terms and conditions of employment of persons employed by Programmed and the employment by it, of persons whose employment was terminated by the previous contractor on redundancy grounds.
[4] The conduct about which complaint is made in the principal application involves allegations about the conduct or behaviour of persons who are participating in a picket outside of and adjacent to the entrance to the Site.
[5] The applicants do not wish to be identified as applicants in the proceeding for reasons which include, concerns about an escalation in the conduct about which they complain directed towards them. I accept that the concerns are genuinely held and that the risk of escalating conduct is not merely theoretical. Whilst a named party to this proceeding might not escalate or repeat the conduct alleged (noting for present purposes that the conduct alleged is likely to be denied or is said to be conduct which is not “at work”), there is a risk in my view, of escalating conduct towards an applicant by persons at the picket who are not named in this proceeding, should the identity of the applicant be disclosed. In my view it matters not for the purposes of the making of the order that I propose to make that the risk of escalating conduct might not relate to conduct which is “at work”.”
[54] In considering the making of a confidentiality Order there is a need to balance the statutory obligations and matters of fairness. In making such an Order, Deputy President Gostencnik in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others 15, stated as follows:
“[20] Ultimately, the question whether to make an order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side. It is also appropriate to take into account the interests of persons who are not parties to this proceeding, but who have given information to DP World under an assurance of confidentiality. I am satisfied that an appropriate balance is struck by the making an order of the kind proposed. I do not accept that an order of the kind sought is contrary to the proper administration of justice because it will give DP World a forensic advantage or inhibit the capacity of the applicants to properly prepare and conduct their cases. Each of the applicants will have access to relevant material as it affects their respective case. It is not the point that their cases are being heard together or that the applicants support one another. Their legal advisers will have access to all of the material, and any difficulties that arise may be brought to my attention with notice to DP World, for resolution.
[21] I am satisfied in the context of these proceedings, having regard to that nature of the confidential information, that it is appropriate to make an order restricting publication of the documents identified by DP World. The order will appropriately protect the identities of non-parties to this proceeding and the information that these non-parties have given DP World during confidential workplace investigations. The order will also avoid the prospect of compromising any on-going investigations and will maintain confidence in the confidential investigation procedures of DP World’s workplace behaviour policy.”
[55] Taking into account in the context of the current proceedings, the employee provided his name to the Employer only and indicated concerns regarding victimisation associated with signing the Agreement and the Employer then provided the signed Agreement and the Affidavit to the Commission, on the basis that his name would be suppressed. The Applicant clearly stated that if the Commission was not prepared to maintain the anonymity of the employee, they would be forced to withdraw the application for approval of the Agreement which, in all other respects, they submitted, was validly made.
[56] Mr Tiley, in response to the confidentiality Order sought, submitted that there was a range of inquiries the Respondent sought to make of the employee signatory to the Agreement filed in 11 July 2016. Mr Tiley stated as follows:
“[the Union] ought to be able to go and make inquiries of the kind I have mentioned with the signatory, having known their name and address.
… the sort of inquiries would be, "What is your occupation, looking at the classifications. Where do you work? Were you given a notice of representational rights? How long were you given to vote? When did you vote? How was the vote conducted? Was it scrutineered", et cetera. "Were there any threats or inducements made for you to vote? Were there any threats or inducements made for you to sign? Those sorts of inquiries, because with the benefit of those inquiries only then can my client formulate its position, in a concluded way, upon the approval application more holistically. It is, in my respectful submission, not as narrow an exercise as has been suggested, respectfully.” 16
[57] The Directions regarding the provision of the documents in this matter set out at [13], allowed for the ETU, at the hearing, to make application, on the basis of prejudice or other matters, for a variation to the Directions and such application and any associated adjournment requests would be considered. No application was made, nor was any concern or objection pursued in relation to the nature of the questions being raised above.
[58] There is a need to balance a range of considerations in considering a suppression Order, including the right to the open administration of justice. In this matter, the Respondent has not made out their case as to how the suppression of the employee’s signature, name, title and address pursuant to sections 593(3)(d)(ii) and 594(1)(c), would prejudice the Respondent. The Commission, via the cross checking of the employee signatory’s name with the list of the employees (also held by the Respondent), verified that the employee is an employee in the class of employees to be covered by the Agreement. The right to open administration of justice must be balanced with the employee’s concerns of victimisation outlined in his redacted Affidavit 17.
[59] It is accepted on balance, while not providing a determination against any party to the proceedings, that the employee has provided a reason for the requested confidentiality, and I am satisfied in the context of these proceedings, that it is appropriate to suppress the identity in terms of the signatory page to the Agreement and the associated Affidavit.
[60] The relevant suppression Orders will issue separately, in relation to the employee signature page and the employee’s Affidavit. I rely on sections 593(3)(d)(ii) and 594(1)(c) to suppress from publication and disclosure the employee’s signature, name, address and title contained in the signature page of the Agreement and to suppress the Affidavit filed on 11 July 2016.
Conclusion
[61] An extension of time is granted pursuant to s.185(3)(b) for the filing of the Agreement until 11 July 2016, for the reasons as set out above. The employee signatory page is accepted on the basis that he is an employee in the class authorised to sign the Agreement. The Agreement, with the employee signature page, is accepted pursuant to s.586(a) in satisfaction of s.185(2)(a) and Regulation 2.06A.
[62] Accordingly, I Order that:
1. Pursuant to s.586(a) of the Act, the Applicant is permitted to correct its approval application by substituting the Agreement filed with the application, with the Agreement filed on 11 July 2016, which includes the (confidential) employee signature page which has been signed in accordance with Regulation 2.06A(2) of the Fair Work Regulations 2009.
[63] For the reasons set out above, pursuant to sections 593(3)(d)(ii) and 594(1)(c), a separate Order [PR584607] will be issued with this Decision. This Order will suppress the employee’s signature, name, address and title on the employee signature page (of the Agreement filed on 11 July 2016) from publication with the Agreement. Further, the Order will suppress from search on the Commission’s file, the employee’s signature, name, address and title on the employee signature page and the employee’s Affidavit, unless a further Direction or Order of the Commission is made.
[64] A separate approval Decision setting out the other relevant statutory criteria will be issued with the Agreement.
COMMISSIONER
Appearances:
Mr N Le Mare, Corrs Chambers Westgarth, for the Applicant.
Mr L Tiley, Hall Payne, for the ETU.
Hearing details:
2016:
Brisbane:
August 17.
1 [2016] FWC 5244.
2 Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services & Minor Capital Agreement 2015-2018, AE417865 PR577124, approved 16 February 2016, see page 38.
3 MSS Security Victorian Enterprise Agreement 2011 [2013] FWCA 1474 at [59]-[60]; McDermott Australia Pty Ltd v AMWU [2016] FWCFB 2222 (Catanzariti VP, Bull DP and Williams C) at [55]-[57].
4 [2016] FWCFB 2222 (Catanzariti VP, Bull DP and Williams C).
5 At [47] and [48].
6 [2015] FWCFB 4422.
7 [2016] FWC 4328.
8 Transcript 17 August 2016 PN161.
9 [2014] FWCFB 6660.
10 Transcript 17 August 2016 PN129.
11 Transcript 17 August 2016 PN98 – PN103.
12 Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services & Minor Capital Agreement 2015-2018, AE417865 PR577124, approved 16 February 2016, see page 38.
13 Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services & Minor Capital Agreement 2015-2018, AE417865 PR577124, approved 16 February 2016, see page 38.
14 [2016] FWC 5707.
15 [2015] FWC 4542.
16 Transcript 17 August 2016 PN269.
17 Affidavit of employee signatory filed 11 July 2016 at [12] and [13].
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