Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services
[2024] FWCA 3838
•7 NOVEMBER 2024
| [2024] FWCA 3838 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement;
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services
(AG2024/3308)
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(AG2024/4081)
GIPPSLAND NDT SERVICES UNION COLLECTIVE AGREEMENT 2023
| Manufacturing and associated industries | |
| COMMISSIONER MIRABELLA | MELBOURNE, 7 NOVEMBER 2024 |
Application for approval of the Gippsland NDT Services Union Collective Agreement 2023 –s.217 application made to vary the Agreement to remove ambiguity or uncertainty – applications granted
Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services (the Employer) has made an application for approval of an enterprise agreement known as the GIPPSLAND NDT SERVICES Union Collective Agreement 2023 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
In the course of considering the application made by the Employer, I raised a concern that the proposed enterprise agreement may not meet the requirements of s.205(1)(b) of the Act. This was because I formed the view that the Agreement, as submitted for approval, would not provide employees who are not union members the right to be represented in the consultation process. Despite the Automotive, Food, Engineering, Printing and Kindred Industries Union’s (AMWU) submission that all employees covered by the Agreement are union members, the clause would have the effect that any employee who chose to resign from the union or any future employee who was not a union member would not have the right to representation.
As a result, the AMWU have filed an application pursuant to s. 217 of the Act to vary the Agreement to remove an ambiguity or uncertainty. It is to that application I turn first.
Section 217 Application
The uncertainty or ambiguity is said to arise in relation to the following clauses in the Agreement.
10.1 Introduction of Change
10.1 Employer's Duty to Notify
10.1.1At least two weeks prior to the employer making a definite decision to introduce major changes in production, program, organization, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be effected by the proposed changes and their union.
10.1.2"Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the award makes provisions for alterations of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.
10.2Employer's Duty to Discuss Change
10.2.1The employer shall discuss with the employees affected and their union inter alia, the introduction of the changes referred to in paragraph 10.1.1 hereof, the affects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their union in relation to the changes.
10.2.2The discussions with employees affected and their union shall commence as early as practicable after the activities referred to in paragraph 10.1.1 hereof.
10.2.3For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union, all relevant information about the changes including the nature of the changes proposed, expected affects of the changes on employees and any other matters likely to affect employees provided that the employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests. For avoidance of doubt, nothing in this provision requires the employer to provide information about employees such as names, addresses, classifications or records to the employee representatives.
10.2.4The employer shall provide information in languages other than English for employees of non-English speaking background.
In its application made under s. 217, the AMWU states that:
“1. The parties seek a variation of clause 10.1 and 10.2 (Employer’s Duty to Notify & Employer’s Duty to Discuss Change) of the proposed enterprise agreement which is subject to the application for approval Application by Gippsland NDT Services Pty Ltd T/A Gippsland NDT – AG2024/3308 currently before Mirabella C.
2. Clauses 10.1 and 10.2 are to include additional words of ‘or their representatives’ after every reference of ‘their union’.”
(emphasis in original)
A question that the s. 217 application raises is whether the Agreement can be varied in the manner sought by the Employer as part of my consideration of approval of the Agreement. The answer to that question is yes in my view for the reasons that follow.
Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:
“(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
There are a number of conditions precedent necessary for the exercise of discretion under s. 217. An application must have been made by one of the parties set out in subsections 217(1)(a)-(c). The application has been made by the AMWU which is an employee organisation covered by the Agreement thus satisfying that requirement. There must also be an enterprise agreement that is the subject of the application. In the present case the Agreement has not yet been approved; however, that is not a barrier to the use of s. 217 for the following reasons:
An enterprise agreement is defined at s. 12 of the Act to mean:
“(a) A single-enterprise agreement; or
(b) a multi-enterprise agreement.”
A single-enterprise agreement is defined in s. 12 of the Act to mean “an enterprise agreement made as referred to in sub-section 172(2)”. Section 172(2)(a) of the Act relevantly states that:
“An employer, or 2 or more employers that are related employers, may make an enterprise agreement (a single enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement”
An enterprise agreement is made pursuant to s. 182(1) of the Act in the following circumstances:
“(1)If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
It is apparent on the material filed with the application for approval of the Agreement that employees were requested by the Employer to approve the Agreement by voting on it (s. 181(1)) in a ballot conducted on 15 August 2024. A valid majority of employees who participated in the ballot approved the Agreement which was made on 15 August 2024 (s. 182(1)). As the Agreement was made on 15 August 2024, it follows that it is an enterprise agreement made pursuant to s. 172(2) and as defined under s. 12 of the Act. As it is an enterprise agreement as defined under the Act, I am satisfied that it may be varied pursuant to an application made under s. 217 of the Act.
Returning now to the merits of the application, I find that clauses 10.1 and 10.2 of the Agreement are ambiguous or uncertain.
I note that I sought the views of the Employer and the AMWU in relation to the application made under s. 217 at a Conference I convened on 15 October 2024. The Employer indicated they did not oppose the Agreement being varied in the manner requested.
Clauses 10.1 and 10.2 of the Agreement are consequently varied as follows:
10.1 Introduction of Change
10.1 Employer's Duty to Notify
10.1.1At least two weeks prior to the employer making a definite decision to introduce major changes in production, program, organization, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be effected by the proposed changes and their union or their representatives.
10.1.2"Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the award makes provisions for alterations of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.
10.2Employer's Duty to Discuss Change
10.2.1The employer shall discuss with the employees affected and their union or their representatives inter alia, the introduction of the changes referred to in paragraph 10.1.1 hereof, the affects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their union or their representatives in relation to the changes.
10.2.2The discussions with employees affected and their union and/or their representatives shall commence as early as practicable after the activities referred to in paragraph 10.1.1 hereof.
10.2.3For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union or their representatives, all relevant information about the changes including the nature of the changes proposed, expected affects of the changes on employees and any other matters likely to affect employees provided that the employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests. For avoidance of doubt, nothing in this provision requires the employer to provide information about employees such as names, addresses, classifications or records to the employee representatives.
10.2.4The employer shall provide information in languages other than English for employees of non-English speaking background.
(emphasis added)
An order giving effect to this variation will take effect from the date of operation of the Agreement, that being 14 November 2024.
Application for approval of the Agreement
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 12 February 2024 and the Agreement was made on 15 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.
The Employer provided employees with a notice of employee representational rights which was not in its prescribed form. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.
The AMWU, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.
The Agreement was approved on 7 November 2024 and, in accordance with s. 54, will operate from 14 November 2024. The nominal expiry date of the Agreement is 30 June 2026.
COMMISSIONER
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