Getinge Australia Pty Ltd

[2020] FWC 7019

[2020] FWC 7019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Getinge Australia Pty Ltd
(AG2020/2882)

Electrical contracting industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 23 DECEMBER 2020

Application for approval of the Getinge Queensland Service Employees Union Collective Enterprise Agreement 2020-2022 – Agreement replacing Getinge Queensland Service Employees Union Collective Enterprise Agreement 2013 – Commission not satisfied the Agreement was genuinely agreed – Application for approval dismissed.

[1] An application has been made for the approval of an enterprise agreement known as the Getinge Queensland Service Employees Union Collective Enterprise Agreement 2020-2022. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Getinge Australia Pty Ltd (the Applicant). For the reasons I outline below, I have determined that the application should be dismissed.

[2] The Getinge Queensland Service Employees Union Collective Enterprise Agreement 2020-2022 was intended to be a single enterprise agreement to cover Field Service Engineers based in Queensland. I will hereafter refer to the Getinge Queensland Service Employees Union Collective Enterprise Agreement 2020-2022 as the “proposed Agreement.”

[3] The Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17) filed with the application was incomplete, with no responses or information being provided in relation to questions 8 to 15. These questions required the Applicant to identify, amongst other things, the applicable modern Award that would otherwise cover employees, match position classifications between the proposed Agreement and the Award, identify any terms and conditions more or less beneficial than the Award, and set out any missing entitlements employees would receive under the Award.

[4] The Notice of Employee Representational Rights (the NERR) appeared not to properly identify the coverage of the Agreement. The Form F17 stated that employees were sent the NERR on 21 July 2020. A vote was not held until 9 September 2020 and was conducted by email. The Form F17 does not provide any information as to when notification of the vote was provided to employees.

[5] Questions 21 requires that an employer identify what steps were taken by the employer to ensure that the relevant employees either were given a copy of the written text of the proposed Agreement and any other material incorporated by reference in the agreement during the access period, or had access to a copy of the above materials throughout the access period. The Applicant at Question 21 simply restated that the NERR was sent to employees and that a vote was carried out by email. There was no indication that copies of the proposed Agreement and Award were provided to employees.

[6] Question 22 of the Form F17 required the Applicant to explain what steps were taken by the employer to explain the terms of the agreement, what was explained and how was the effect of those terms explained to the relevant employees. Again, the Applicant’s Form F17 restated that the NERR was sent out and the vote was conducted. No detail was provided as to whether any explanation of the terms and effect of the proposed Agreement was given other than a statement that employees met with employee bargaining representatives.

[7] I observe that in addition to these procedural issues, there were a number of concerns with the Agreement itself. In particular, rates of pay for junior employees under the age of 17 were all below Award rates. The proposed Agreement omitted several allowances provided under the Award, such as meal, leading hand, first aid, tool, and travel time allowances. While these appeared to be compensated for most classifications by the higher rates of pay, the lack of allowances impacted those employees at 17 years of age whose rates are between 0.56% to 9.84% above the Award so that I could not be satisfied that it passed the Better Off Overall Test (BOOT).

[8] I observe that if Annualised Salaries became payable under the proposed Agreement, as contemplated at clause 16, they were to be payable only to employees in Central or Northern Queensland and were to be paid in full satisfaction of any and all payments the relevant employee would have been entitled to receive under the proposed Agreement, Award, or other applicable industrial instrument or legislation. I note no annualised salary rates were provided in the Agreement.

[9] Finally, I note that clause 2 of the proposed Agreement identified that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) was covered by the proposed Agreement. The AMWU was not stated as being a bargaining representative for the Agreement on the Form F16 application.

[10] The Agreement was initially allocated to Commissioner Simpson who identified the above concerns and sought a response from the Applicant and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) who were a bargaining representative for the Agreement. The Applicant provided a response on 19 October 2020 which addressed some of the concerns above, including an amended Form F17. The second Form F17 addressed some of the issues identified above but did not set out any detail regarding the matters raised at paragraphs [4], [5] and [6] of this Decision.

[11] The CEPU provided a response on 20 October 2020 raising concerns that the Applicant had not adhered to the pre-approval steps for the proposed Agreement. The CEPU specifically raised that employees were not notified by the beginning of the access period of the time, place and voting method of the ballot as required by s. 180(3) and that it was unclear what steps were taken to explain to employees the terms of the agreement and the effect of those terms as required by s. 180(5).

[12] The CEPU submitted that it appeared that the proposed Agreement had not been genuinely agreed to for the purposes of s.188(c) and based on the materials provided by the Applicant, the CEPU submitted that the above issues are more than minor procedural or technical errors permitted to be resolved by subsection 188(2). The CEPU said it was concerned that the Commission could not be satisfied, as required by s.186(2)(a), that the proposed Agreement had been genuinely agreed to by the employees covered by the proposed Agreement and as such could not be approved.

[13] The matter was later allocated to me for consideration. On 8 December 2020 I issued further Directions requiring the Applicant to provide additional information relating to concerns I held that pre-approval requirements had not been met, and on the basis that I was not satisfied that the response previously provided to Commissioner Simpson had properly engaged with those issues.

[14] The issues raised about which I held concerns and which were set out in correspondence from my Chambers to the Applicant, can be summarised as follows:

•  The coverage of the Agreement stated in the NERR issued to employees on 21 July 2020 was different to the coverage described at clause 2.1 of the Agreement, and I was unable to be satisfied the employees were advised properly of the coverage of the Agreement;

•  The Applicant had not provided sufficient information to establish that the group of employees was fairly chose on the basis of being organisationally or operationally distinct, including why shift workers were excluded from coverage;

•  In response to how employees were notified of the time and place of the vote the Applicant had instead referred to the provision of the NERR and that the vote was held on 9 September 2020, and the company had not answered the question as to how employees were notified of the time and place of the vote such that s.180(3) of the Act is satisifed;

•  The Applicant had not provided information establishing that the requirement in s. 180(2) of the Act had been met, being that the Applicant took all reasonable steps during the access period to give employees a written copy of written text of the Agreement or to ensure they had access to a copy during the access period; and

•  In relation to the requirement of s. 180(5)(a) of the Act that the employer take all reasonable steps to explain the terms of the Agreement and the effect of those terms, all that the Applicant had stated was that briefings were held with questions answered, and that further information was needed regarding what was discussed, including copies of any explanatory material given to employees.

[15] The Directions were sent by email to Mr Jeffrey Niemoller, who is stated as being the contact person for the Applicant on the Form F16 application. The Directions required the Applicant to file a further Form F17 statutory declaration by Thursday 10 December 2020, and stated that if a further Form F17 containing full information and supporting material sufficient to address the matters above was not filed, the application would be dismissed on the basis I was not satisfied that the requirements had been met. In correspondence to the Applicant, I also noted that it was of concern that the Applicant had previously filed a Form F17 statutory declaration that does not address the required issues and in fact evidenced disregard for clear requests for information.

[16] No response was received from the Applicant in accordance with my directions.

[17] On 15 December 2020, I caused my Associate to send further correspondence noting the Applicant’s failure to lodge a further Form F17 statutory declaration or to respond at all to correspondence from my Chambers sent on 8 December 2020, and stating that if no response was filed by 16 December 2020, the application for approval of the proposed Agreement would be dismissed without further notice. My correspondence also noted that it had been sent to Mr Niemoller as the contact person for the Agreement, and that this correspondence was also being sent to the email address for a Ms Lauren Westbrook, Human Resources Business Partner who had lodged the application by email, as well as Mr David Whiting who was copied into the email lodging the application. The correspondence was also copied to Mr Christopher Major of the Applicant, who Mr Niemoller had previously copied into correspondence sent by email.

[18] No response was received on behalf of the Applicant from any of the persons to whom correspondence was sent.

Consideration

[19] After considering the material contained in the application, the accompanying Form F17 statutory declaration, and the Applicant’s response and second Form F17 filed on 19 October 2020, I am not satisfied that the requirements of ss.186(2)(a) and 188 of the Act have been met. I am not satisfied the proposed Agreement has been genuinely agreed by the employees on the basis of the reasons identified above, namely:

•  No information was provided to the Commission as to the steps taken to explain to the relevant employees the terms of the Agreement and the effect of those terms. I am therefore unable to be satisfied on the material before me that the Applicant took all reasonable steps to ensure the terms of the proposed Agreement and the effect of those terms were explained to its employees;

•  No information was provided to the Commission as to when and how employees were notified of the date, time, place, and method of the vote;

•  The Applicant stated that copies of the Award and NES were kept on premises and provided to employees at briefings and during the negotiation process, but no information as to whether copies of the Agreement, previous Agreement, or other relevant documentation was provided; and

[20] I also note that several concerns were raised in relation to whether the Agreement passes the better off overall test. The Applicant advised it would provide undertakings addressing these but did not provide these undertakings.

[21] In summary, I am not satisfied the proposed Agreement has been genuinely agreed by the employees. The Applicant was provided ample opportunity to respond and to file an amended Form F17 correcting these issues. The Applicant did not engage with the Commission at all subsequent to filing a response on 19 October 2020. For the reasons set out above, that response was inadequate and did not properly engage with the issues about which information had been sought.

[22] As I am not persuaded the statutory requirements for the approval of the proposed Agreement have been met the application for the approval of the enterprise agreement known as the Getinge Queensland Service Employees Union Collective Enterprise Agreement 2020-2022 is dismissed.

DEPUTY PRESIDENT

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