Geelong Racing Club Inc

[2018] FWC 3938

[2018] FWC 3938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Geelong Racing Club Inc
(AG2018/176)

DEPUTY PRESIDENT MASSON MELBOURNE, 4 JULY 2018

Application for approval of the Geelong Racing Club Grounds Maintenance Staff Agreement 2017.

[1] An application has been made for approval of the Geelong Racing Club Grounds Maintenance Staff Agreement 2017 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Geelong Racing Club Incorporated (Geelong Racing Club). The Agreement is a single enterprise agreement.

[2] A notice of employee representational rights was provided to employees on 15 December 2017. 1 Employees were provided with access to the Agreement and information about the effect of the terms of the Agreement on 15 December 2017. Employees were notified of the time, place and method of voting on 15 December 2017 and voting occurred on 22 January 2017. A majority of those who voted approved the Agreement.

[3] The Australian Workers’ Union (AWU) was a bargaining representative on behalf of employees for the Agreement.

[4] Geelong Racing Club filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test was the Racing Industry Ground Maintenance Award 2010 (the Award). 2

[5] The statutory declaration noted that the provisions in the Agreement were more beneficial than the Award or were not conferred by the Award. No less beneficial terms were identified.

[6] The AWU filed a statutory declaration supporting approval of the Agreement on 23 January 2018.

Pre-approval requirements

[7] In reviewing the Agreement for approval, the Commission identified a number of concerns with the Agreement and wrote to Geelong Racing Club on 23 May 2018. A number of those concerns were addressed in the Geelong Racing Club’s response received on 25 June 2018. Following consideration of the Geelong Racing Club’s response, two outstanding concerns were then identified in correspondence sent to the Geelong Racing Club on 26 June 2018. The Geelong Racing Club was advised that as a consequence of those concerns, the Commission had formed a view that the Agreement was unable to be approved. The outstanding issues were:

(1) The last notice of employee representational rights (NOERR) was forwarded to employees on 15 December 2017 and had been sent 5 months after the notification time of 16 July 2017. This period was outside the statutory 14 day period specified under s 173(3) of the Act.

(2) Employee were not provided with a copy or access to a copy of incorporated materials (the Award) prior to or during the access period as required under s 180(2) of the Act. As such the Commission could not be satisfied that employees had genuinely agreed to the Agreement as required under s 188 of the Act.

[8] As a consequence of the concerns held by the Commission and its view that the Agreement could not be approved, Geelong Racing Club sought to be heard in relation to the matter and a Hearing was conducted on 3 July 2017. Present at the hearing were Mr Daniel Salter (CEO Geelong Racing Club), Mr Mark Cavanagh (Staff Representative) and Ms Tanya Harrington (AWU).

[9] In the course of the hearing, Geelong Racing Club confirmed that the final NOERR was provided to employees on 15 December 2017 because they had identified an error in the original NOERR that was provided to employees at the commencement of bargaining. It was also confirmed that bargaining commenced in July 2017 and continued through until the final Agreement was provided to staff on 15 December 2017, which was at the same time as the amended NOERR was provided to staff. Geelong Racing Club and the AWU both conceded that bargaining had not formally ceased and recommenced triggering a new notification time, such that the NOERR issued on 15 December 2017 would satisfy s 173(3) requirements.

Relevant legislation

[10] If an application is made under s 185 of the Act, the Commission must approve the agreement if satisfied of those matters under ss 186 and 187 of the Act. Section 186 of the Act, relevantly states:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test…

[11] When an Agreement has been genuinely agreed to is dealt with by s 188 of the Act 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.”

[12] Of relevance to this matter, s 181 of the Act states:

“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.”

[13] The notice referred to in s 181 of the Act must be a valid notice under the Act, the requirements for which are set out in ss 173 and 174 of the Act and relevantly provide 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.”

“174 Content and form of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low paid authorisation is in operation

(4) If a low paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”

Consideration

[14] The question to be determined in this matter is whether the NOERR issued in December 2017 was a valid notice.

[15] I am satisfied that bargaining commenced for the Agreement in July 2017 and continued until agreement was reached in December 2017. I accept that a NOERR was provided to staff at the commencement of bargaining in July 2017, but that errors were identified with that NOERR and a further amended NOERR was provided to employees on 15 December 2017. I am further satisfied that on errors having been identified with the original NOERR, no steps were taken to halt and restart bargaining such that a new notification time was established. It is clear that the final NOERR was provided to employees well outside the required statutory period of 14 days from the notification time.

[16] The obligation under s 173(3) of the Act to provide the NOERR “as soon as practicable, and not later than 14 days, after the notification time for the agreement” requires strict compliance as made clear by Vice President Hatcher in Transport Workers Union of Australia v Hunter Operations Pty Ltd (Hunter) 3 where he reasoned as follows:

[76] Like s.174(1A), s.173(3) is expressed in mandatory language. Not only is the word “must” used to convey the requirement that the Notice must be given as soon as practicable after the notification time, but also the expression “no later than” is used to introduce the 14-day requirement. That expression, read in the context of the subsection as a whole, must be read as meaning something equivalent to “in no circumstances after”. No other provision of the Act allows or accommodates any extension to the time allowed by s.173(3). It is not an irregularity capable of being waived under s.586(b). The language of s.173(3) therefore strongly points to invalidity being the consequence of a failure to comply.

[77] One important contextual consideration supports this conclusion, and that is that there is no separate sanction for contravention of s.173(3). It is not a civil remedy provision. No other remedy for contravention is identifiable. Therefore unless non-compliance with s.173(3) resulted in the invalidity of the Notice and any subsequent enterprise agreement being rendered incapable of approval, it would become in substance voluntary and without practical utility. That cannot have been intended by the legislature.

[78] An interpretation of s.173(3) which requires strict compliance is consistent with the statutory purpose of the Notice as identified in Peabody Moorvale. It would ensure that employees are informed at the earliest practicable time of the fact that bargaining is occurring and their entitlement to representation in that process. An alternate construction, whereby the Notice could be given at any time without adverse consequences provided that this occurred 21 days before a vote to approve the enterprise agreement occurred, would have potential consequences which would be destructive of the Notice’s statutory purpose. It might mean that bargaining for an enterprise agreement is well advanced or even completed before all employees are advised of the fact that bargaining is occurring and are made aware of the means by which they may participate and be represented in that bargaining process. If, for example, an employer agrees to negotiate in response to a claim for an enterprise agreement made by a relevant union, the late provision of the Notice may mean that any employees who are not members of that union may not be aware that bargaining is occurring or that they may be individually represented in such bargaining before the negotiations have substantially progressed or have finished. Similarly if an employer initiates bargaining with employees directly, and any employees who are union members are not advised from the outset through the Notice that they are entitled to have their union represent them in the bargaining, the result may be that bargaining proceeds without that union being involved contrary to the representational entitlement of the union members”

[17] The reasoning of the Vice President in Hunter was adopted by a Full Bench majority in Uniline Australia Limited (Uniline) 4 where it stated:

“[104] The Appellant correctly points to the requirement to comply with subsection 181 (2) as an essential element in the Commission being satisfied that employees covered by the agreement have genuinely agreed to it, but by focusing only on the 21 day requirement, the Appellant ignores the full effect of that subsection. The section is not concerned merely with time but with time in relation to the giving of a Notice. Section 181(2) refers to a “notice”. The reference in s.181(2) to the “last notice under subsection 173(1)”, recognises that a Notice might be given to employees on different days. This is unremarkable since employees often work on different shifts or days and some may be on leave, with the result that a Notice may be given to employees on different days. However, this does not relieve the employer of the obligation to give the Notice or the last of the Notices within the time frame prescribed by s.173(3) of the Act by reference to the notification time.

[105] Having regard to the statutory provisions and contextual considerations set out above, it seems to us that for the purposes on s.181(2) “the last notice under s.173(1)” can only mean a Notice that:

● the employer took all reasonable steps to give to an employee who
    ○ will be covered by the agreement; and
    ○ is employed at the time when the employer agreed to bargain or initiated bargaining;

● meets that form and content requirements in s.174 of the Act and Regulation 2.05 of the Regulations; and

● is given as soon as practicable and not later than 14 days relevantly, after the employer agrees to bargain or initiates bargaining for the agreement as required by s.173(3) of the Act.

[106] We do not discount the possibility that for the purposes of ss. 181(2) and 188(a)(ii) a Notice might be given to an employee more than 14 days after the notification time for the agreement and the Commission might nevertheless be satisfied that the employer had complied with ss. 181(2). This might occur for example, where the employer took all reasonable steps to give the Notice as required by ss. 173(1) but those steps were unsuccessful in relation to a particular employee. But that is not the case here. The Appellant took no such steps, and it does not submit otherwise. As this was not the subject of any argument advance by the Appellant we take the point no further.

[107] It is not in contest that relevant employees were not given a Notice within the time prescribed. Moreover, though employees of the Appellant were given a Notice more than two years after the Appellant agreed to bargain or initiated bargaining, the requirement to give a Notice under s.173(1) is met only if, inter alia it is given to persons employed “at the notification time”. There was no evidence below as to how many, if any, of the persons were given the Notice more than two years after the notification time, were actually employed by the Appellant at the notification time.

[108] We consider that unless the Appellant took all reasonable steps to give such a Notice to each relevant employee in the form required and within the time required, it cannot be said to be a Notice as contemplated by the Act and in particular for the purposes of s.181(2) was given. It is not in contest that the Appellant took no step to give and did not give, a Notice to any employee until well after the notification time. It follows that the request by an Appellant that employees approve the Agreement was made prematurely, that is, the time for reckoning the 21 day period is yet to begin because a valid Notice had not been given. This would be the case if a Notice was not given at all. We see no reason why a Notice given some two years after the notification time should yield a different result.

[109] Absent such a Notice, there cannot be satisfaction that the Appellant covered by the Agreement complied with subsection 181(2) of the Act, with the consequence that there cannot be satisfaction that the Agreement has been genuinely agreed to by the employees covered by the Agreement as required by s.186(2)(a) of the Act.

[110] To conclude otherwise would render the provisions of ss.173 and 174 devoid of any effect.”

[18] Based on the material provided, I have concluded that Geelong Racing Club has not taken all reasonable steps to give notice of the right to be represented by a bargaining representative as soon as practicable, and not later than 14 days, after the notification time for the Agreement in accordance with s 173 of the Act.

[19] It is clear from the authorities that the failure of the Geelong Racing Club to provide the final NOEER to employees within the period prescribed by s 173(3) of the Act renders the notice invalid for the purpose of s 181(2) of the Act. I am consequently unable to be satisfied that the Agreement has been genuinely agreed to in accordance with s 188 of the Act as I am required to be under s 186(2)(a) of the Act in order to approve the Agreement.

[20] For the aforementioned reasons, the application for approval of the Geelong Racing Club Grounds Maintenance Staff Agreement 2017 must therefore be dismissed. An order reflecting this decision will be separately issued.

DEPUTY PRESIDENT

Appearances:

Mr D. Salter on behalf of the Applicant.

Ms T. Harrington on behalf of The Australian Workers’ Union.

Hearing details:

2018.

Melbourne (telephone hearing).

3 July 2018.

Printed by authority of the Commonwealth Government Printer

<PR608688>

 1   Section 173 of the Act.

 2   MA000014.

 3   [2014] FWC 7469.

 4   [2016] FWCFB 4969.