George Weston Foods T/A Tip Top Bakeries
[2023] FWCA 3000
•18 SEPTEMBER 2023
| [2023] FWCA 3000 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
George Weston Foods T/A Tip Top Bakeries
(AG2023/757)
TIP TOP BAKERIES DRY CREEK, CONSOLIDATED ENTERPRISE AGREEMENT 2023
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER HUNT | BRISBANE, 18 SEPTEMBER 2023 |
Application for approval of the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2023
George Weston Foods T/A Tip Top Bakeries (the Employer) has applied for approval of an enterprise agreement known as the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval application apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 31 October 2022.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where ethe Agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 10 March 2023.
On 8 September 2023, I issued a decision in [2023] FWC 2298 addressing the concerns raised by the United Workers’ Union (UWU) in respect to the voting process. In my decision, I noted I did not have sufficient evidence to make a determination as to whether the voting period and voting method was in compliance with the Act in relation to the “weekend warriors” and those absent during the relevant Access Period. Accordingly, I directed the Employer to provide evidence how those employees, together with slicing employees and those on leave between 28 February 2023 and 10 March 2023 received notification of the voting period and voting method.
The Employer’s Evidence and Submissions
On 13 September 2023, the Employer provided its submissions as directed.
Weekend Warriors
The Employer explained that the term “weekend warriors” is used to describe certain employees who perform work on the weekend. The Employer noted that the term “weekend warriors” is not one used by the Employer, and rather a term derived from the UWU.
The Employer provided the names of the “weekend warriors” who worked between 3 and 6 Mach 2023. In the spreadsheet lodged by the Employer, all of those employees were working between 3 and 6 March 2023 and all received voting packs by hand delivery on 2 March 2023. The Employer confirmed this by providing an attachment which evidences those employees signing receipt of the voting packs on 2 March 2023.
Slicers
The Employer also provided a document containing the names of slicing employees who worked between 3 and 6 March 2023. It identified two employees who were on leave at the time. Other than those two employees, the information identified that all other slicers were working between 3 and 6 March 2023 and all signed receipt of voting packs on 2 March 2023.
This is confirmed in another attachment provided by the Employer which evidences that other than the two employees on leave, those employees signed receipt of the voting packs on 2 March 2023.
In relation to the two employees on leave, one was emailed the voting pack through his work email address (a GWF email address) and the other received the voting pack through email on 2 March 2023. Both of those employees voted as evidenced in another document provided by the Employer, which are the voting records extract for the two employees on leave.
Absent employees between 28 February and 10 March 2023
The Employer has identified that there were 21 employees who had a leave of absence between 28 February 2023 and 10 March 2023. The Employer provided these names to the Fair Work Commission (the Commission) only.
The list provided includes the two slicers as mentioned in paragraph [11] above.
The Employer provided an attachment containing the names of all employees who had an absence during the requisite period, when they received the voting packs and whether they voted. There are five employees for which the Employer is unable to evidence how those employees received their voting packs. That said, the Employer confirmed all of those employees voted.
Of the 21 employees identified, the Employer confirmed that 11 employees voted, and 10 employees did not vote.
Of the employees where the Employer was able evidence the date and method of delivery of voting packs, 13 employees received voting packs on 2 March 2023 and three employees received voting packs on 6 March 2023.
The Employer also couriered voting packs to three employees. One of those employees appeared on the absent employee list.
The Employer further noted that the email correspondence from Ms Tahlia Holbrook, a former employee of the Employer, dated 2 March 2023, identified the three employees on leave and for whom there were no email addresses, and the request for voting packs to be couriered. The Employer provided the courier records for those three employees which showed the voting packs were collected by the courier on 3 March 2023 and delivered on 6 March 2023.
The Employer also provided the voting records extract for the three employees who had voting packs couriered to them and which indicated that two of the three employees voted, and one did not.
Disposition
In relation to the weekend warriors and the slicers who received their voting pack on 2 March 2023, the Employer asserted that those employees had sufficient opportunity to vote up until 1:00pm on 10 March 2023.
The Employer provided another document which identified that, excluding the two slicers on leave, all other weekend warriors and slicers had the opportunity to vote, but only 8 employees within that group chose not to vote. The two slicers who were on leave also did vote.
Of the 21 employees who had an absence from 28 February and 10 March 2023, 13 employees received voting packs on 2 March 2023. Of those that received voting packs on 6 March 2023, one employee voted and two did not vote. Of those where the Employer is unable to evidence the date and delivery method of voting packs, all of those employees did vote.
Having regard to my earlier decision, the Employer submitted that there are fewer than eight employees amongst slicers, weekend warriors and employees who had absences who would have liked to have voted but were denied the opportunity to do so on account of the manner in which they were informed by the Employer of the voting process and time of the vote.
The Employer submitted that if the extent of any misstep is limited to the employees on leave, that should not be a basis upon which to decline to approve the Agreement as:
· Of the employees who had an absence between 28 February and 10 March 2023, 11 voted and 10 did not. Of those that did not vote, the Employer submitted that those employees chose not to vote and only two employees received voting packs after 2 March 2023;
· The Employer took all reasonable steps to notify the relevant employees of the details of the vote as required by section 180(3) of the Act; and
· Any deficiency in the Employer’s process is a minor procedural or technical error as contemplated by section 180(3) of the Act.
The Bargaining Representative’s Views
On 13 September 2023, I caused my chambers to invite the Bargaining Representatives to provide a response to the Employer’s submissions by 15 September 2023. I had redacted attachments as they contained the names of employees which I did not consider necessary to provide.
Only the United Workers’ Union (UWU) responded to my chambers on 14 September 2023, advising that it did not seek to file any additional submissions in response to those provided by the Employer.
Consideration
Having regard to the material before me, I decided to determine the matter on the papers without holding a hearing.
On the evidence before me, it is clear that the Employer did not take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur, and the voting method that will be used by the start of the access period for the Agreement. Accordingly, the Employer did not comply with s.180(3) of the Act.
The employees were, however, informed of the required information by 2 March 2023, with the voting period 8-10 March 2023. For any employees who the Employer cannot guarantee received the information, I am satisfied that it is less than eight affected employees, who would have had an impact on the voting numbers.
Section 188 of the Act, as it existed prior to 6 June 2023, provided:
“188 When employees have genuinely agreed to an enterprise agreement
(1) 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.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”
As the notification time for the Agreement was before 6 June 2023, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] the failure by the Employer to comply with s.180(3) constitutes a minor procedural or technical error for the purpose of s.188(2) of the Act, as it was just before 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
Undertakings
The Commission raised other certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The UWU wrote to my chambers on 18 April 2023, at the time when the Undertakings were provided, advising that it did not have any objections or issues in relation to the undertakings.
I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.
I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above and my findings in paragraph [31], I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The UWU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the UWU.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 September 2023. The nominal expiry date of the Agreement is 25 February 2026.
COMMISSIONER
Annexure A – Undertakings
[1] [2019] FWCFB 318.
Printed by authority of the Commonwealth Government Printer
<AE521533 PR766313>
0