Electrical Resource Providers Pty Ltd

[2016] FWCA 6900

[2016] FWCA 6900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Electrical Resource Providers Pty Ltd
(AG2016/5070)

ELECTRICAL RESOURCE PROVIDERS PTY LTD POWERLINE ENTERPRISE AGREEMENT 2013-2017

Electrical contracting industry
COMMISSIONER GREGORY	MELBOURNE, 29 SEPTEMBER 2016

Application for approval of the Electrical Resource Providers Pty Ltd Powerline Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the Electrical Resource Providers Pty Ltd Powerline Enterprise Agreement 2013-2017 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by the employer, Electrical Resource Providers Pty Ltd. It is a single enterprise agreement.

[2] The Commission was subsequently contacted by the Electrical Trades Union (“the ETU”) 1 who advised that they had not been provided with a copy of the proposed Agreement, or the application and the associated Employer’s Statutory Declaration. They also expressed concern that the Agreement had not been “genuinely agreed” under s.186(2)(a) of the Act. The ETU was then in contact with the Commission again to indicate it objected to the application.2 Further details about the nature of its objection were contained in its Form F18 – Statutory Declaration of Employee Organisation. The Commission accordingly advised that the application would be listed for hearing to deal with the ETU’s objection.

[3] The ETU then provided correspondence to the Commission in advance of the hearing indicating it did not now intend to press its opposition to the application, however, it wanted the decision to note it does not wish to be covered by the Agreement, as it had been excluded from the bargaining process leading up to the making of the Agreement. 3 It also expressed the view that any obligations imposed on the ETU by the Agreement should have no effect and be unenforceable. In this context it made particular reference to clause 2.2 of the Agreement.

[4] The application was then dealt with in a hearing on 16 September 2016. Ms Alana Costa from the National Electrical and Communications Association (“NECA”) appeared on behalf of the Applicant, together with its General Manager, Mr Chris Garlick, and the Operations Manager, Mr Brett McRae. Ms Lucy Weber appeared on behalf of the ETU.

[5] Ms Weber confirmed in the submissions provided on behalf of the ETU that the Union did not want to be covered by the Agreement if the Commission decided to approve it. Ms Costa submitted in response that, regardless of the submissions made by the ETU, the Applicant wanted the Union to be covered by the Agreement. The Commission expressed the view at this point that it did not believe it had the power to compel the ETU to be covered by the Agreement. It accordingly suggested the matter be adjourned to enable the Applicant and the ETU to have further discussions about whether this issue could be resolved on an agreed basis. The Commission also asked the parties to provide a further indication of their position by close of business on 22 September 2016.

[6] The Commission subsequently received further correspondence from the ETU indicating its position had not changed. 4 It again indicated it did not oppose the approval of the Agreement, but did not intend to give notice under s.183 that it wants to be covered by the Agreement. Copies of that correspondence were also provided to the Applicant’s representative.

[7] It is noted that the Form F16 application completed by the Applicant did not provide a specific “yes” or “no” answer to the question, “Were there any employee organisations (unions) involved in the Agreement making processes as bargaining representatives?” However, in the block that follows and below the statement, “If you answered yes to question 4.1” it makes reference to the ETU and the relevant contact person from the Union, being Mr Justin Sordello. It also added a further note underneath to the effect that, “The union has not agreed to 2 clauses in the EBA.” 5

[8] However, it is also noted that the ETU did not sign the Agreement on behalf of the employees. It is instead signed by an individual employee, who is indicated to have signed in the capacity of “Employee Representative.”

[9] It is also noted that clause 2.1 of the Agreement indicates it will “apply to and cover” the employer, the employees “and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.” 6 However, sub clause 2.2 continues to state:

“Please note that the ETU will only be covered by this Agreement if it elects to be covered by this Agreement in accordance with section 183 of the FW Act and is noted in the decision of Fair Work Australia to approve the agreement that the agreement covers the ETU. (In the event that the ETU is not a party covered by this Agreement, any obligation of the ETU referred to in this Agreement has no effect and is unenforceable under this Agreement.)” 7

[10] Section 183 of the Act deals with the entitlement of an employee organisation to have an enterprise agreement cover it. It relevantly states:

“Entitlement of an employee organisation to have an enterprise agreement cover it

(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.” 8

[11] Therefore, to be covered by an enterprise agreement an employee organisation or trade union must, firstly, be a bargaining representative. The ETU submits it was not involved in any significant way in the negotiations that led to the making of the Agreement. However, s.176(1)(b) of the Act states that an employee organisation is a bargaining representative for an employee(s) if the employee(s) is a member of the Union. In this context it is understood that the ETU does have members employed by the Applicant, therefore it is formally a bargaining representative per s.176 of the Act, regardless of its involvement or otherwise in the bargaining process.

[12] However, the legislation also makes clear that to be covered by an Agreement the Union must give the Commission a written notice stating that the organisation wants the Agreement to cover it. The relevant section continues to indicate that the notice must be given to the Commission, with a copy also provided to the employer, before the Commission approves the Agreement. The Commission must then note in its decision to approve the Agreement that it covers the Union. The Full Bench decision in Community and Public Sector Union v Water Corporation 9 also makes clear that the responsibility for providing the notice rests with the employee organisation. It will not otherwise be covered.

[13] The Full Bench decision in RotoMetrics Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 10 also makes clear that in order for an employee organisation to be covered by an Agreement, approved by the Commission, provision of the relevant notice is a mandatory requirement. Conversely, failure to provide the notice will preclude the employee organisation from being covered.

[14] In the present matter the ETU has made clear it does not wish to be covered by the Agreement, and has no intention of providing the relevant notice to the Commission, and to the employer, which would enable it to be covered. I am satisfied that in these circumstances the Commission has no ability and no power to compel the ETU to take action that would cause it to be covered by the Agreement. I am also satisfied that the Commission has no other power to direct or order that the ETU be covered. Therefore, the ETU is not to be covered by the Agreement.

[15] I am otherwise satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 October 2016. The nominal expiry date of the Agreement is 31 August 2017.

COMMISSIONER

Appearances:

A Costa of the National Electrical Contractors Association with C Garlick and B McRae for the Applicant.

L Weber for the Electrical Trades Union.

Hearing details:

2016.

Melbourne:

September 16.

 1   Email to Fair Work Commission from Electrical Trades Union, dated 31 August 2016.

 2   Further email to Fair Work Commission from Electrical Trades Union, dated 31 August 2016.

 3   Email to Fair Work Commission from Electrical Trades Union, dated 16 September 2016.

 4   Email to Fair Work Commission from Electrical Trades Union, dated 21 September 2016.

 5   Form F16 – Application for approval of an enterprise agreement (other than a greenfields agreement), signed by B McRae, dated 15 August 2016.

 6   Electrical Resource Providers Pty Ltd Powerline Enterprise Agreement 2013-2017.

 7   Ibid.

 8   Fair Work Act 2009 (Cth) s 183.

 9   [2015] FWCFB 3270.

 10   [2011] FWAFB 7214.

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