Gladstone Ports Corporation Limited
[2013] FWC 305
•14 JANUARY 2013
[2013] FWC 305 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Gladstone Ports Corporation Limited
(AG2012/8740)
GLADSTONE PORTS CORPORATION ENTERPRISE AGREEMENT 2012
Port authorities | |
COMMISSIONER BOOTH | BRISBANE, 14 JANUARY 2013 |
Gladstone Ports Corporation Enterprise Agreement 2012 - inclusion of model consultation term.
[1] The Gladstone Ports Corporation Enterprise Agreement 2012 (the Agreement) was approved on 26 November 2012. In the decision approving the Agreement it was determined that the consultation clause in the Agreement did not meet the requirements of section 205(1) of the Fair Work Act 2009 (the Act). The model consultation clause was accordingly incorporated into the Agreement by the effect of s.205(2).
[2] Section 205 of the Act provides as follows:
205 Enterprise agreements to include a consultation term etc.
Consultation term must be included in an enterprise agreement
(1) An enterprise agreement must include a term (a consultation term) that:
(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and
(b) allows for the representation of those employees for the purposes of that consultation.
Model consultation term
(2) If an enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement.
(3) The regulations must prescribe the model consultation term for enterprise agreements.
[3] Following approval of the Agreement a number of bargaining representatives including the Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Construction, Forestry, Mining and Energy Union (CFMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) sought reasons for the determination that the consultation clause in the Agreement did not meet the requirements of section 205 of the Act.
[4] These are those reasons:-
The consultation clauses in the Agreement are clauses 3.10 and 3.11. Extracted below are the relevant parts of the clauses that deal with representation of employees.
3.10 CONSULTATIVE MECHANISMS AND PROCEDURES
3.10.1 In making decisions that have an impact on others, whether in relation to matters covered by this Agreement or in relation to broader matters, GPC, employees and their unions are committed to consulting with each other.
…..
3.10.3 Consultation involves the following steps by all parties:-
(a) Providing all relevant information to the other party about impending changes or decisions or other matters that will impact on that party;
(b) Providing an opportunity for each party and their union to put forward views, comments and suggestions on the matters including the opportunity, where relevant to meet with employee representatives;
…
(d) Advising employees and their union of the final decisions, explaining how the views expressed by employees and their representatives were taken into account.
3.10.4 Where changes are required to GPC’s policy and such changes directly affect the terms and conditions of employees covered by this Agreement, the consultative steps in this clause will be undertaken prior to the change.
3.10.5 In the interests of improving efficiency and productivity a Joint Consultative Group (JCG) of management and employee representatives has been established for the purpose of employee information and input into matters which affect the workplace in respect to productivity, efficiency, workplace change and personal reward.
3.11 INTRODUCTION OF CHANGES
3.11.1 Employer’s duty to notify
(a) Where GPC has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, GPC shall notify the employees who may be affected by the proposed changes and their relevant Union.
…..
3.11.2 Employer’s duty to discuss change
(a) GPC shall discuss with the employees affected and their relevant Union, inter alia, the introduction of the changes referred to, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.
…..
(c) For the purpose of such discussion, GPC shall provide in writing to the employees concerned and their relevant Union, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees:
…..
[5] In the clauses extracted above the consultation process provides for relevant employees and their union. No other type of consultation is provided for. For example:
3.10.3 Consultation involves the following steps by all parties – where ‘parties’ means GPC, Unions and employees covered by the Agreement (see definitions in cl.1.9)
3.11.2 (c) For the purpose of such discussion, GPC shall provide in writing to the employees concerned and their relevant Union,
[6] No part of 3.10 or 3.11 allows for representation of employees other than by their union. I note that clause 3.11 is based generally on the award modernisation model clause introduced under the repealed Act with the significant difference that the consultation is with the “relevant union” rather than with “the employees concerned and their representatives, if any” as per that model clause. 1
[7] Hanson Construction Materials 2 dealt with a clause with a similar effect that did not allow for representation of employees other than employee representatives who are delegates of the union.
[8] Senior Deputy President Richards stated as follows:
“[21] Each of the above cited Agreements stipulate that consultation will be extended to employees in their own discrete right and to Delegates (presumably as defined in clause 21 of the Agreements).
[22] Nowhere does clause 23 allow for the representation of employees other than by the employees’ delegates. The employees’ delegates are those representatives who are described at clause 17 of the Agreements under the heading “Employee Representatives”. They are employee representatives who are delegates of the union which can represent the industrial interests of the relevant employees.
[23] Consequently, in my view, the requirements of s.205(1)(b) of the Act cannot be met as employees are only afforded representation by way of a delegate of a union, and not by a non-prescribed form of representation.”
[9] His Honour’s analysis is directly applicable to this case. A consultation clause that provides employees representation only by way of a union representative does not satisfy s.205(1)(b) of the Act in that it does not allow for a non-prescribed form of representation for employees.
[10] Having not satisfied the requirements of s.205(1)(b) of the Act, the Agreement does not contain a ‘consultation term’ as defined in s.205(1).
[11] As provided for in s.205(2) where an enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement.
COMMISSIONER
1 for an application of the award modernisation model see Health Services Union v Austin Health [2009] AIRCFB 353
2 Hanson Construction Materials Pty Ltd and others [2012] FWA 3037 at para 21-23
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