Freshmore (NSW) Pty Ltd
[2022] FWC 768
| [2022] FWC 768 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Freshmore (NSW) Pty Ltd
(AG2022/298)
| COMMISSIONER P RYAN | SYDNEY, 6 APRIL 2022 |
Application for approval of a single-enterprise agreement – failure to issue notice of employee representational rights prior to ballot – whether a minor or technical procedural error – Commission not satisfied enterprise agreement has been genuinely agreed to – application dismissed.
Background
Freshmore (NSW) Pty Ltd (Applicant) filed an application for approval of a single-enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act) (Application)
On 25 February 2022, my chambers sent correspondence to the Applicant seeking responses and/or undertakings in relation to various issues of concern that were identified with Application. Amongst the issues of concern, the Applicant was requested to provide any additional information as to how the Notice of Employee Representational Rights (NERR) was provided to employees along with any supporting documentary materials.
Following the granting of an extension of time, the Applicant filed its response on 3 March 2022. In relation to the NERR the Applicant stated:
…a vote was held 02/02/2022 the vote was held by secret ballot and the EBA was passed. Advanced Precast then lodged the NERR form on the 09/02/2022 within the 14-day period as prescribed in the fair work ACT 2009.
I then listed the matter for conference on 8 March 2022. During the course of the conference, the Applicant confirmed the NERR was not provided to the relevant employees until after the vote to approve the proposed enterprise agreement.
On 9 March 2022, my chambers sent further correspondence to the Applicant, providing a summary of the outstanding issues. In relation to the issue of the NERR, that correspondence stated:
Issue 3 – during the course of the conference, the applicant employer confirmed that the notice of employee representational rights (NERR) was not issued to employees until after the vote to approve the agreement. Commissioner Ryan requires any further response or submission as to whether this constitutes a minor technical or procedural error capable of being remedied. In this respect, your attention is drawn to the Full Bench Decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others.
On 14 March 2022, the Applicant filed submissions and undertakings in response. In relation to the NERR, the Applicant submitted that the failure to provide the NERR within 14 days of the notification time was a misunderstanding as to when it was required to be provided to employees and constituted a minor procedural error. The Applicant further submitted that the relevant employees were not disadvantaged by the error.
On 25 March 2022, the following correspondence was sent to the Applicant:
Dear parties,
I refer to the above matter. Commissioner Ryan provides the following correspondence to the parties:
The Applicant has confirmed in conference before the Commission (8 March) and in subsequent written submissions (14 March) that it did not give the Notice of Employee Representational Rights (NERR) to the relevant employees. Further, it appears that the Applicant did not take any reasonable steps in an attempt to give the NERR to the relevant employees.
It is my provisional view that the failure to comply with s.173(3) renders the request to approve the Agreement invalid and the Commission cannot be satisfied that the Agreement was genuinely agreed. This is so, because the request to approve a proposed enterprise agreement cannot be made until at least 21 days after the day on which the last NERR is given to the relevant employees (s.181(2) and s.188(1)).
I draw attention to the following authorities:
· Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others; and
· AMWU v Broadspectrum (Australia) Pty Ltd.
Before making a final decision in this matter, I will provide the Applicant and any bargaining representatives an opportunity to provide any further written submissions by 4 pm on Friday 1 April 2022.
If the Applicant or any bargaining representative seeks a hearing, then a request is to be made to my chambers by 4 pm on Thursday 31 March 2022. If a request is made, the matter will be listed for hearing at 3 pm on Monday 4 April 2022. In the absence of any request for a hearing, the matter will be determined on the papers.
Alternatively, if the Applicant wishes to withdraw the application for approval, that can be communicated by reply email to my chambers or by the filing of a form F50 notice of discontinuance.
I confirm that a notice of listing for 3 pm on Monday 4 April 2022 will only be issued if a request for a hearing is made in accordance with the directions of Commissioner Ryan.
[Associate Sign-off]
No further submissions or responses were received from the Applicant or any bargaining representative.
Legislative Provisions
Section 173 of the FW Act provides as follows:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.”
Section 181 of the FW Act provides as follows:
“181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”
Section 188 of the FW Act provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
Consideration
I confirm my provisional view that the request to approve the Agreement was invalid and the Commission cannot be satisfied that the agreement was genuinely agreed to for the following reasons.
First, I do not accept the submission that the failure to issue the NERR constitutes a minor procedural or technical error pursuant to s.188 (2) of the FW Act. In Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], the Full Bench observed that if certain paragraphs comprising the ‘core requirements’ of the NERR were omitted, it is unlikely to be construed as a ‘minor error’.[2] I agree with the observation of the Full Bench, which is apposite to the matter before me. The Applicant’s failure to issue the NERR means the relevant employees were never provided with the prescribed text regarding their representational rights, which the Full Bench described as the ‘core requirements’ of the NERR.
Second, the request to approve a proposed enterprise agreement must not be made until at least 21 days after the day on which the last NERR is given to the relevant employees.[3] This means the vote to approve the proposed enterprise agreement was not conducted in accordance with s.181(2).[4] Furthermore, I do not accept that a request that does not comply with s.181(2) can constitute a minor procedural or technical error where the level of non-compliance was the failure to issue the NERR prior to the vote taking place.
Accordingly, I am not satisfied that the enterprise agreement has been genuinely agreed to by the employees.
Disposition
The Application is dismissed. An order to that effect will issue with this decision.
COMMISSIONER
[1] [2019] FWCFB 318
[2] Ibid at [82]-[83].
[3] See s.181(2) of the FW Act.
[4] Australian Manufacturing Workers’ Union v Broadspectrum (Australia) Pty Ltd [2018] FWCFB 6556 at [28].
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