Dune Contracting Pty Ltd

[2020] FWC 6724

[2020] FWC 6724

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dune Contracting Pty Ltd
(AG2020/3144)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 DECEMBER 2020

Application for approval of the Dune Contracting Pty Ltd Enterprise Agreement 2020-2024.

[1] An application has been made for the approval of an enterprise agreement known as the Dune Contracting Pty Ltd Enterprise Agreement 2020-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dune Contracting Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The application has been accompanied by a Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17). It has been completed by Mr Peter Rae. The occupation of Mr Rae listed in the Form F17 is that of Director.

[3] At Question 26 of the Form F17, it is outlined that at the time of the vote on the Agreement, there were two employees covered by the Agreement.

[4] At Questions 18 and 19 of the Form F17, it is stated that on 11 September 2020, employees were notified of the intention to bargain for an Agreement and provided a copy of the Notice of Employee Representational Rights (NERR) via email. I requested a copy of that email. Upon production, it was apparent the email had been sent by Mr Paul Murray to a single addressee, [email protected], albeit it was carbon copied to three other individuals, including Mr Rae. The email stated:

“James,

Being our only employee in our Dune contracting Pty Ltd company I am advising you that we have the intention to vote for an Enterprise Bargaining Agreement.

We will be holding 2 meetings over the coming 10 days in order to ensure you understand the terms of the proposed Agreement and the effect of these terms. We encourage any questions throughout this process.

You have the right to appoint a bargaining to represent you in the negotiation of the Dune Contracting Pty Ltd Agreement 2020-2024 (the Agreement. Please see attached your Notice of Representational Rights (NERR) for further information on this.

You will also find attached a copy of the proposed Agreement, Dune Contracting Pty Ltd Agreement 2020-2024 (the Agreement). A copy has also been made available in the office.” (my emphasis)

[5] Section 180(3) of the Act requires an employer to take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method by the start of the access period for the Agreement, and s.180(4) of the Act defines the access period as the 7-day period ending immediately before the start of the voting process. Question 20 in the Form F17 deals with these matters. The answer to Question 20 provided was “Employees were emailed through the vote details” and reference was made to an email dated 25 September 2020. Accordingly, I also requested from the Applicant a copy of this email. It was sent by Mr Murray to the email address [email protected] only, and stated:

“Dear staff,

We are writing to notify you that on 5/10/2020 we will be holding a vote for Dune Contracting Pty Ltd Enterprise Agreement 2020 – 2024 (the Agreement to cover your employment. A copy of this agreement was circulated on 11/9/2020 and is also attached to this email.

Details of the vote can be found below:

Time: 9.00am
Location: 9-11 Abbott St, Alphington, 3078.
Voting method: Ballot

If you are not available at this time, or if you are available but the location or method is not viable for you, please let us know so alternative arrangements can be made for you to vote.

Should you have any questions about the vote, the proposed agreement, or any other matter, please do not hesitate to contact me by email, phone or in person.”

[6] Having received the copies of the two abovementioned emails, I caused an email to be sent to the Applicant’s representative, Ms Natalie Mill of NECA, on 1 December 2020, stating:

“Deputy President Clancy thanks you for the material you have provided in response to the queries he raised at the Mention held in relation to the application for the approval of the Dune Contracting Enterprise Agreement 2020-2024 on 9 November 2020.

Having reviewed the material, the Deputy President makes the following observations:

1. An email sent to [email protected] on 11 September 2020 stated “James, being our only employee in our Dune contracting Pty Ltd company I am advising you that we have the intention to vote for an Enterprise Bargaining Agreement…”; and

2. A further email sent on 25 September 2020 only to [email protected] stated “Dear staff, We are writing to notify you that on 5/10/2020 we will be holding a vote for Dune Contracting Enterprise Agreement 2020-2024…”

As s.172(6) of the Fair Work Act 2009 provides that an enterprise agreement cannot be made with a single employee, the Deputy President cannot see how he can approve the Dune Contracting Enterprise Agreement 2020-2024. You are therefore invited to withdraw the application or make submissions as to how the Agreement can be approved by 12noon on Friday 4 December 2020.”

[7] Ms Mill replied by email dated 4 December 2020, as follows:

“Dear Associate,

At this stage the Company wishes to proceed with the application on the basis that they do in fact have two Employees, one of which is the Director of the Company, Peter Rae.

We note that the email does only reference one Employee and acknowledge this is an error, however do not feel that either James or Peter will have been substantially disadvantaged in the process as a result of the minor error in the email correspondence. Peter has also been copied into the correspondence (attachment 1) and was engaged throughout the process including attending meetings. All terms and their effect on the employment have been explained to both Peter and James.

We ask that the Deputy President will take this into consideration when assessing the application.

Please do not hesitate to get in touch should anything else be required…”

[8] In response, I caused an email to be sent to Ms Mill on 8 December 2020, stating:

“The Deputy President thanks you for your email dated 4 December 2020. The Deputy President has noted the explanation you have given but considers it lacking in persuasive value because the stated “error” was made twice at two distinct stages of the Agreement-making process. Mr Rae was copied into the 11 September 2020 email, but not as an employee. As to the 25 September 2020 email, he was not a recipient at all.  

Further noting that s.182(1) of the Fair Work Act 2009 provides that the Agreement is made when a majority of those employees who will be covered by a proposed agreement who cast a valid vote approve the Agreement, the Deputy President will need to persuaded that Mr Rae, as Director of Dune Contracting Pty Ltd, is covered by a classification specified in Schedule A of the Agreement.

The Deputy President advises that you have a final opportunity to persuade him that this was an Agreement made with more than a single employee and may submit any final material by 5:00PM on Wednesday, 9 December 2020.”

[9] Ms Mill sent an email in response on 9 December 2020 which stated:

“Dear Associate,

Thank you for your email and thank you to the Deputy President for allowing the opportunity to respond. Please refer to the additional information below.

While Mr Rae oversees the affairs of the Company due to his industry experience and the desire to grow the Company moving forward, at this stage, and for the foreseeable future, Peter continues to work ‘on the tools’ as a senior Electrical tradesman. The Agreement classification that covers Mr Rae’s employment is ‘Electrical Worker Grade 5 – Licensed’.

Please find attached Mr Rae’s current Electrical License (Expiry 14/07/2022) issued by Energy Safe Victoria and records of Mr Rae’s Electrical trade training.

It is also important to note, that Mr Rae plays an essential role in mentoring Dune Contracting’s second Employee and will continue to do so with future Employees of the Company. Despite having additional responsibilities in the Director role, the Company has administrative functions to support this role whilst they continue to expand their services and tender for larger projects.

We thank you again for your consideration and trust that this helps clarify any ambiguity and addresses the Deputy President’s concerns.”

[10] Section 172(6) states in the clearest of terms “An enterprise agreement cannot be made with a single employee.” As the correspondence I have caused to be sent to the Applicant’s representative indicates, I have been concerned that s.172(6) of the Act has not been complied with and therefore, the Agreement cannot be approved.

[11] I have noted the explanations provided by Ms Mill but ultimately consider the two emails provided by the Applicant fatal. The email dated 11 September 2020 was addressed to one person only and stated in unequivocal terms that the addressee was the only employee in the Dune Contracting Pty Ltd company. The second email of 25 September 2020, to notify the time, place and voting method for the vote, was sent only to the same individual. I do not consider that the part of the explanation that merely states the correspondence referencing one employee was an “error” is persuasive enough to overcome the unequivocal text of the email dated 11 September 2020. Furthermore, that the error was promptly and starkly repeated on 25 September 2020 has only aroused further scepticism in my mind.

[12] As I am not persuaded that the Agreement has been made other than with a single employee, I am not satisfied the requirements in s.172(6) and s.182(1) of the Act have been met. As such, the Agreement cannot be approved and the Application must be dismissed.

DEPUTY PRESIDENT

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