Essential Recruitment & Consulting Pty Ltd
[2010] FWA 3655
•11 MAY 2010
[2010] FWA 3655 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/611)
COMMISSIONER MCKENNA | SYDNEY, 11 MAY 2010 |
Essential Recruitment & Consulting Pty Ltd Enterprise Agreement 2010.
[1] On 15 March 2010, Essential Recruitment & Consulting Pty Ltd (“the applicant”) filed an application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) seeking the approval of an enterprise agreement titled the Essential Recruitment & Consulting Pty Ltd Enterprise Agreement 2010 (“the Agreement”). The Agreement is a single-enterprise agreement. The applicant is a recruitment and labour hire company. The Agreement is intended to cover the applicant’s employees who are involved in warehousing and printing operations.
[2] Clause 2.7 of the statutory declaration comprising the Form F17 (the Employer’ Declaration in Support of Application for Approval of Enterprise Agreement) indicated that 138 employees would be covered by the Agreement (albeit cl.4.1 of the employer’s declaration otherwise indicates that a combined total of 140 part-time and casual employees would be covered by the Agreement). Of the 138 (or 140) employees proposed to be covered by the Agreement, 21 employees cast a valid vote to approve the Agreement; 20 employees voted to approve the Agreement.
[3] At the initial listing of the matter on 26 March 2010, I raised a number of preliminary matters concerning the employer’s declaration and the content of the Agreement itself. Among the matters raised at the initial listing, I expressed concern that the applicant’s representative, Mr D Houlihan of First IR Consultancy Pty Ltd, had completed the employer’s declaration, although he could not, for example, personally attest to at least some matters within the employer’s declaration. I also raised concern about various aspects of the Agreement given that: (a) at least some provisions appeared to be less advantageous than the reference instruments nominated in the employer’s declaration; (b) at least some provisions did not appear to conform with some aspects of the National Employment Standards (“NES”); and (c) some aspects of the Agreement were characterised by what appeared to be drafting errors or typographical errors, or both. Mr Houlihan addressed various matters in submissions that day. A number of matters were addressed by Mr Houlihan in such a way as to allay certain concerns I had about the Agreement.
[4] In response to some other matters raised, the applicant subsequently made further submissions and adduced additional evidence, including:
- a further employer’s declaration, completed by the applicant’s managing director, Ms S Banwell (Exhibit 1);
- an affidavit by Ms Banwell outlining matters concerning corporate registration and addressing matters relevant to the pre-approval steps (Exhibit 2);
- an affidavit by Ms L Ford, an employee of the applicant, also addressing matters concerning the pre-approval steps (Exhibit 3);
- written submissions dated 7 April 2010 and proposed written undertakings (Exhibit 4);
- documents referred to in the affidavits marked Exhibit 1 and Exhibit 2, which were filed (at my request) after the hearing on 14 April 2010; and
- further written submissions dated 15 April 2010, also filed after the hearing.
[5] I turn now to consider matters arising.
PRE-APPROVAL STEPS
Time and place at which the voting will occur and the voting method that will be used.
[6] In cl.2.5 of the employer’s declaration, Ms Banwell deposed as follows:
“2.5 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to notify all relevant employees of the time and place at which the vote was to occur and the voting method to be used: (s.180(3))
Notice was sent in writing to all employees accompanying the agreement on 24 February. Additional verbal notification was also given confirming the date, time and place in which the vote would occur.”
[7] In para [5] of Exhibit 2, Ms Banwell further deposed as follows in relation to the steps taken to advise the employees of the time and date of the vote, and the voting method to be used:
“[5] Following [the arrangements on 10 February 2020 concerning provision of the notice of representational rights], we mailed to each employee, with their payslip an individual copy of the proposed enterprise agreement. This was accompanied by another notice that informed employees as to how the ballot was to be conducted. This was completed by 24 February 2010. Additional copies of the proposed agreement where [sic] available at our offices in Parramatta as well as at each site that we had employees.” [My bolding]
[8] I requested a copy of the “notice” referred to in para [5] of Ms Banwell’s affidavit, as it had not been attached to the affidavit marked as Exhibit 2. The document filed post-proceedings in response to my request is a letter signed by Ms Banwell and dated 23 February 2010. The letter reads:
“Dear Employee
Enclosed you will find a Ballot notice, again please take time to read through the Enterprise Bargaining Agreement. [sic]
If you have no further questions regarding the agreement, then I will ask you to vote on the given ballot paper and return it to us in the self address [sic] envelope within 7 days.
This is a silent ballot, therefore you do not need to ad [sic] your name anywhere.
The ballot is not compulsory, however we would like you to vote anyway. ...” [My bolding]
[9] As may be seen from this extract, the letter dated 23 February 2010 advised employees that “Enclosed you will find a Ballot notice”. However, the “Ballot notice” was not attached to the letter that was filed post-proceedings. Further inquiries of the applicant’s representative confirmed that:
“… the document dated 23 February is the notice that was referred to in paragraph 5 of the Affidavit of Ms Simone Banwell. It provides information to the employees as to the conduct of the ballot (secret ballot by mail).”
[10] I instructed my Associate to confirm a request for the enclosure referred to in the first paragraph of the letter dated 23 February 2010 - that is, the “Ballot notice”. It transpires that the enclosed “Ballot notice” was the ballot paper itself. Mr Houlihan confirmed as follows, also attaching a copy of a ballot paper which was the enclosure referred to in the letter:
“Please find attached a copy of the ‘notice’ referred to in the first paragraph of the letter dated 23 February. This notice was simply the ballot paper that was sent with this letter and the stamped addressed envelope.
My instructions are that the letter of 23 February is the only notice issued to employees with respect to how the ballot would be conducted.”
[11] I note Ms Banwell deposed at para [6] of Exhibit 2 that the ballot papers and addressed envelopes were sent to employees about a week after the letter dated 23 February 2010, but that appears now to be contradicted by other the documentary materials.
[12] The material before me does not lead to the conclusion the applicant informed the employees of all relevant information required by s.180(3) of the Act. That is, the documentation indicates the employees were advised the method of voting would be a silent, postal ballot to be conducted by returning the ballot paper in an envelope addressed to the applicant. However, the letter does not advise the employees of the opening and closing dates of the postal ballot period, being information required by s.180(3)(a) concerning the time of the vote. Moreover, the letter dated 23 February 2010 asked employees to vote and return the ballot paper within seven days. In this respect, it may be noted that, by s.180(3), employers must take all reasonable steps by the start of the access period for the agreement (being the seven day period ending immediately before the start of the voting process) to advise employees of the time and place at which the vote will occur, and the voting method that will be used. I am not satisfied the applicant provided employees with information required by s.180(3) of the Act concerning the opening and closing dates for the ballot in accordance with time-frames.
Notice of representational rights
There are also contradictions in the evidence that has been adduced concerning the issuing of the notice of representational rights. I begin by noting that Ms Banwell deposed that relevant documentation was mailed to employees with their payslips. She deposed at para [7] of Exhibit 2: “Our payslips are mailed each Tuesday for the previous week”. Further, she deposed at para [4] of Exhibit 2 as follows:
“The process that we followed was that all information was mailed directly to employees with their payslips. The notice of employee representational rights was placed inside each employee’s payslip envelope and mailed to their home address. Additional copies of this notice where [sic] posted at each location that Essential Recruitment & Consulting had employees. This was completed by 10 February 2010.”
[13] In this respect, it may be noted that Ms Banwell deposed at cl.2.2 of the employer’s declaration that the date on which the last notice of representational rights under s.173(1) of the Act was given to an employees who will be covered by the Agreement was 10 February 2010. This is also the date recorded on the notice of representational rights.
[14] The Tuesday most proximate to 10 February 2010 was Tuesday 9 February, that is, the day before the notice of representational rights was signed. Given that the notice of representational rights was signed and dated on Wednesday 10 February 2010, it appears the notice would not, therefore, have been mailed to employees with the payslips on Tuesday 9 February 2010.
[15] I note Ms Ford deposed she had received the notice of representational rights on or about Tuesday 9 February 2010. While I note that Ms Ford’s evidence was that she received the notice of representational rights “on or about” 9 February 2010, the date she received the notice presumably must have been on some date later than 9 February 2010, given the notice was signed and dated 10 February 2010 and the evidence otherwise indicated materials were mailed with the payslips on Tuesdays. The first Tuesday after the signing and dating of the notice of representational rights on Wednesday 10 February 2010 was the following Tuesday 16 February 2010.
[16] Section 181(2) of the Act provides that the request to approve an enterprise agreement must not be made until at least 21 days after the day on which the last notice of representational rights was given under s.173(1) of the Act. If a notice of representational rights was, for example, mailed with the payslips on Tuesday 9 February 2010, then it leads to the conclusion the date on the notice of representational rights put before Fair Work Australia is incorrect. If, on the other hand, the notice of representational rights was forwarded to employees with the payslips on the first Tuesday after the signing and dating of the notice on 10 February 2010 (i.e. Tuesday, 16 February 2010), then the pre-approval steps could not have been met – because (according to cl.2.2(b) of the employer’s declaration) the vote opened on 4 March 2010.
[17] In any event, it appears the pre-approval steps have not been met anyway, given that by letter dated 23 February 2010 Ms Banwell asked the employees to vote and return the ballot within seven days – thereby suggesting the voting actually commenced on or after 23 February 2010, rather than 4 March 2010 as indicated in cl.2.2(b) of the employer’s declaration. I note, in this regard, that Ms Banwell stated in Exhibit 2 at para [7] that the ballot was declared open from 4 March 2010 and was open for a week. However, there is no evidence that advice of this balloting period was communicated to employees. That is, by letter dated 23 February 2010, the employees were relevantly asked to vote and to return the ballot paper by mail within seven days.
[18] Given the contradictory aspects of the evidence in this respect, I am not satisfied as to whether the requirements of s.181(2) of the Act have been met, given that the request to approve an enterprise agreement must not be made until at least 21 days after the day on which the last notice of representational rights was given under s.173(1) of the Act. In so concluding, I have noted, and taken into consideration, that part of the evidence that stated: “Additional copies of this notice where [sic] posted at each location that Essential Recruitment & Consulting had employees. This was completed by 10 February 2010.” In this respect, considerations arise of a type discussed by Cambridge C in CQ Leisure Investments Pty Ltd t/as Tabatinga Entertainment Centre & Café[2010] FWA 3118 at [4]-[9].
[19] As to the content of the notice of representational rights itself, the first paragraph of the notice states, without any qualification, that the Agreement “is proposed to cover employees that are currently employed by Essential Recruitment & Consulting Pty Ltd”. However, as described cl.2.9 in the employer’s declaration, the Agreement is intended to cover only some employees of the applicant. That is, the response at cl.2.9 of the employer’s declaration identifies the employees proposed to be covered by the Agreement as follows:
“All employees whose employment is covered by the classifications in the agreement. The agreement does not cover employees who are not involved in either the warehousing or printing operations of the company. For example the administrative employees of the employer are not covered by this agreement.”
[20] Hence, the information in the notice of representational rights does not contain information other than that it is intended to cover current employees. In this respect, I note that the pro forma document (Exhibit 5) apparently used by the applicant to customise its own notice of representational rights specified advice that notice should “insert category of employees”.
[21] Lastly, I note that the notice of representational rights before Fair Work Australia does not actually refer to the Agreement. The notice of representational rights refers to the “Essential Recruitment & Consulting Pty. Ltd Collective Agreement 2009”. It is unclear whether this is simply a typographical error or whether it inadvertently refers to an earlier agreement which, the submissions indicated, was not approved by the Workplace Authority.
Material incorporated by reference
[22] While there is evidence the applicant arranged for copies of the Agreement to be made available to the employees, the evidence does not support a conclusion that steps were taken by the applicant to provide employees with copies of, or access to, the NES. Aspects of the NES are applied in the Agreement, albeit not uniformly. In some instances, reference is made to the NES, but the provisions are not in conformity with the NES - and in a way that is adverse to employees.
[23] Further, one clause of the Agreement (cl.25.8) simply reads: “The provisions of Part 2-8 of the Act shall apply”, without any identification of, for example, which Chapter of the Act. There is no evidence to suggest this segment of the Act was provided to employees either in full or in summary form.
THE REFERENCE INSTRUMENTS
[24] At cl.3.1 of the employer’s declaration, the Storage Services and Wholesale Award 2010 and the Graphic Arts, Printing and Publishing Award 2010 were nominated as the modern awards to be used for reference purposes. At cl.3.2 of the employer’s declaration, the following instruments were also nominated: “Storemen and Packer, General (State) Award (NSW NAPSA)” and the “Printing Industries (State) Award (NSW NAPSA)” (“the NAPSAs”). In cl.3.4 of the employer’s declaration, the following question is asked: “Does the agreement contain any terms or conditions that are less beneficial than equivalent terms and conditions in the reference instrument(s) identified in questions 3.1 or 3.2?” The answer provided was “No”.
[25] Despite the answer that there were no terms or conditions that are less beneficial, I raised with Mr Houlihan a number of matters where the Agreement appeared, in my preliminary assessment, to provide less beneficial terms or conditions than the modern awards and the NAPSAs. Mr Houlihan’s submissions addressed a number of matters that day; he also requested time to make more detailed submissions concerning some matters. In employer’s declaration, it was said at cl.3.2 that the NAPSAs were relevant instruments for the purposes of enabling Fair Work Australia to apply the better off overall test. Mr Houlihan initially had proposed to tender the pay scale summaries for the NAPSAs, and also made some preliminary submissions concerning the NAPSAs. Now, however, the applicant contends against the information provided in the employer’s declaration. Shortly stated, Mr Houlihan submitted that the applicant was never bound or obliged to observe the terms of a State award, a NAPSA or State legislation.
[26] Mr Houlihan made fully-developed written submissions after the proceedings adjourned about why it is now said by the applicant that the NAPSAs do not relevantly arise for consideration; and he also submitted it would be open and appropriate for me to correct or amend the employer’s declaration. Irrespective of the merits of the submissions, it is nonetheless problematic, on various levels, for an applicant to contend against matters otherwise advanced by it in statutory declarations made in support of the application for the approval of the Agreement. In view of my conclusion that the Agreement cannot be approved given the deficiencies concerning the pre-approval steps, it is unnecessary, however, to determine the matters addressed in these particular aspects of Mr Houlihan’s submissions.
CONCLUSION
[27] The applicant did not in its employer’s declaration at cl.2.13 identify any terms of the Agreement that are detrimental in any respect to an employee when compared to the NES. Given the number of undertakings now proposed by the applicant to endeavour to rectify aspects of the Agreement that are adversely not in conformity with the NES, it may be accepted that the response at cl.2.13 of the employer’s declaration was deficient. The number of written undertakings now proposed concerning matters addressed in the NES speaks to the fact the Agreement contain provisions which were inferior to the NES (albeit I note there was a general proviso at cl.3.4 that the Agreement does not purport to exclude the NES and, to the extent of any conflict, the NES prevail). I incline to the view that the proposed undertakings satisfactorily address the concerns relevant to the matters they specifically address – but, taken collectively, they may well be regarded as constituting a substantial change to the Agreement - even if, in the main, they are designed to do no more than bring the Agreement into better conformity with aspects of the NES.
[28] The application before Fair Work Australia is deficient in other ways, for example by stating there were no disadvantages as against the reference instruments, whereas there are various examples in that respect – even though many may be regarded as marginal disadvantages. Apart from the matters I raised in a preliminary way, there appear to be other disadvantages as against the Graphic Arts, Printing and Publishing Award, including clauses concerning matters such as: dispute resolution training leave; casual conversion; higher duties allowance; other allowances; transport in connection with overtime; adjustment of allowances (there is no provision in the Agreement for the adjustment of the allowances over its four year life); timing of payment of wages ordinarily and on termination of employment; loadings applicable to work performed at certain times; and certain circumstances where overtime and penalty rates are attracted. While I do not summarise them, there appear also to be various disadvantages as against the Storage Services and Wholesale Award, although not as many, it seems, as under the Graphic Arts, Printing and Publishing Award.
[29] One difficulty with this application is that while there appear to be at least some disadvantages under the Agreement, not one disadvantage was identified in the employer’s declaration at cl.3.4. The employer’s declaration did, however, indicate at cl.3.5 that the rates of pay for the printing classifications are substantially higher than the rates of pay under the modern award, and “the APCS for the Award Based Transitional Instrument” and that “Shift work penalties are significantly higher under the agreement for storage employees”. It may be that, with the undertakings, the Agreement would pass the better off overall test. However, I consider there is insufficient material as to the advantages and disadvantages to be so satisfied. I do not have a fully-informed appreciation of whether the Agreement passes the better off overall test, where the comparative advantages and disadvantages have not been properly identified by the applicant in the employer’s declaration. Were it not for the dismissal of this application on other grounds, I would, however, have relisted the matter in relation to further assessing the balance of advantages and disadvantages.
[30] It is unnecessary to finally determine whether the Agreement passes the better off overall test, given that the applicant has not established that the pre-approval requirements have been met concerning voting advice and given also the various difficulties concerning the notice of representational rights as outlined earlier in the decision. Moreover, there is no evidence the applicant provided employees with copies of, or access to, materials incorporated by reference in the Agreement.
[31] In my view, the Agreement cannot be approved given that the materials tendered and filed do not lead to the view the applicant met the pre-approval requirements of the Act.
[32] The proceedings are concluded.
COMMISSIONER
Appearances:
D. Houlihan, First IR Consultancy Pty Ltd, for Essential Recruitment & Consulting Pty Ltd
Hearing details:
2010
Sydney
March 26;
April 14.
Final written submissions: 10 May 2010
Printed by authority of the Commonwealth Government Printer
<Price code C, PR996921>
0
1
0