Glen Eden Constructions Pty Ltd
[2022] FWCA 2102
•27 JUNE 2022
| [2022] FWCA 2102 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Glen Eden Constructions Pty Ltd
(AG2022/1208)
Glen Eden Constructions Pty Ltd Enterprise Agreement 2022 – 2026
| Building, metal and civil construction industries | |
| COMMISSIONER SIMPSON | BRISBANE, 27 JUNE 2022 |
Application for approval of the Glen Eden Constructions Pty Ltd Enterprise Agreement 2022 - 2026
An application has been made for approval of an enterprise agreement known as the Glen Eden Constructions Pty Ltd Enterprise Agreement 2022 – 2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Glen Eden Constructions Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
On 27 April 2022 the matter was allocated to me, and I sent correspondence to the Applicant on 29 April 2022 setting out some concerns that were identified with the Agreement.
On 3 May 2022 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) wrote to the Commission seeking to be heard and requesting the documents submitted in the matter. Later that day, these were sent to the CFMMEU.
I listed the matter for a Directions Hearing on 10 May 2022 where I granted leave for the CFMMEU to be heard and set directions for the filing of material. Both parties filed in accordance with those directions. After both parties had filed material, email correspondence was sent from my chambers to the parties which asked both parties to advise whether they were content for the Commission to determine the matter on the material filed, or alternatively, if they wished to cross examine witnesses for the other party. Both parties indicated they were content for the Commission to proceed to determine the matter on the papers.
Submissions
The CFMMEU submitted that in the days after the vote process had taken place CFMMEU Official, Dean Mattas, was contacted by members who work for the Applicant with concerns about the process undertaken and the lack of representation. After seeking advice from Mr Dunbar, Mr Mattas asked the members to put their concerns in writing. They agreed on the condition their names be kept anonymous.
The CFMMEU raised the following issues:
· Letters received from members asserted they had never received the Notice of right to be represented; and
· The company had not correctly notified the relevant employees of the start of the access period as required.
Notification of the vote
The CFMMEU submitted that the Applicant has since put forward an explanation for the second issue as it had also been raised by the Commission, but that the response does little to allay the CFMMEU’s concerns, in that the requirement under s.180 of the Act requires that an employer must take all reasonable steps. The CFMMEU contended that mentioning that a vote might take place in approximately a weeks’ time then 13 days later informing people the vote will take place tomorrow would not seem to satisfy the requirement to take all reasonable steps.
In reply, the Applicant referred to the information declared by Mr Damian Higgins (Mr Higgins) at paragraph 20 of the Form 17 Declaration and in its clarification response sought by the Commission. Relevantly, the Applicant submits the notification can be summarised to comprise:
(a)on 6 April 2022, a representative of the employer held individual meetings with all relevant employees at which time they were advised:
(i)a vote will take place in approximately one week’s time;
(ii)the vote will take place on the C2SIW project site; and
(iii)the voting method will be an anonymous ballot paper vote.
(b)on 12 April 2022, the relevant employees were notified of a revised voting date, with voting to take place on 20 April 2022 on the C2SIW project site by anonymous ballot paper;
(c)on 19 April 2022, the relevant employees were reminded of the vote to occur the following day; and
(d)the vote took place at the prestart meeting on 20 April 2022 on the C2SIW project site, which was the same location as advised at the start of the access period and at least 7 clear days following the notice provided on 12 April 2022
Having regard to the above steps, the Applicant submitted that it complied with the requirements in section 180(3) of the Act, as all reasonable steps were taken to notify the relevant employees of the time and place at which the vote was to occur, and the voting method that would be used, and each of these matters were communicated 7 clear days’ prior to the vote. In circumstances where the CFMMEU can make its case that the Applicant in some way failed to comply with a procedural requirement under section 180(3) of the Act, which the Applicant rejects, section 188(2)(a) of the Act states that an enterprise agreement has been genuinely agreed by the employees to be covered by the agreement if the Commission is satisfied that the Agreement would have been genuinely agreed to but for a ‘minor procedural error’.
The Applicant submitted that a failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of section 188(2)(a) of the Act. A procedural requirement is one which requires an employer to follow a particular process or course of action. The Applicant contended that the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’.[1] A minor procedural error may include employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period, rather than by the start of the access period.[2]
Further and similarly, the Applicant submitted that informing employees of the matters in sections 180(3)(a) and (b) just after the start of the 7 day access period, say 6 days before the start of the voting process, is also likely to be a ‘minor error’ in most cases.[3] If a period slightly shorter than 7 clear days is capable of comprising a minor procedural defect or technical error, it is the Applicant’s submission that postponing the vote to a later date with a full 7 clear days’ notice should also qualify as a ‘minor error’. What constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement that has not been complied with and the relevant circumstances. For example, the Applicant submitted that the need to inform employees of the time and date of the vote may be more significant than informing them of the voting method, as the first requirement may impact on the employees’ capacity to participate in the voting process, the second may not.[4]
The Applicant submitted that a Full Bench of the Commission has comprehensively examined potential procedural or technical requirements by considering the underlying purpose of these requirements and how employees might be disadvantaged by a minor technical or procedural error.[5] For the obligations under section 180(3), employees could be disadvantaged insofar as they may be unaware of the time or location of the vote or they may be unable to attend if it is communicated at short notice.[6]
The Applicant submitted that the test posited by section 188(2)(b) is whether ‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’. The Applicant submitted that the word ‘likely’ in section 188(2(b) means probable in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.
In assessing whether employees were not likely to have been disadvantaged by an error, the Applicant submitted that it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.
Where the time for the vote needs to be postponed enabling all employees to participate, and the relevant employees were notified of a new time 7 clear days in advance, it is the Applicant’s submission that the employees would suffer no disadvantage by having a more fulsome access period for them to contemplate the terms of the Agreement and to seek clarification about its operation.
At all material times, the Applicant submits that it complied with the timeframes specified in the Act in relation to the making and approval of the Agreement, and any error, is minor for the purposes of determining whether pre-approval steps have been complied with.
NERR
The CFMMEU submitted redacted copies of letters it had received from employees of Glen Eden Constructions Pty Ltd due to requests from its members to keep their identities anonymous.[7]
On the 12 of May 2022 Mr Dunbar from the CFMMEU sent an email to concerned members with the Applicant’s Notice of representational rights attached seeking further clarity around whether they had seen the said document before. Mr Dunbar submitted that both responded they had never seen it before nor been handed it before.[8]
On the 12 of May 2022 Mr Dunbar sent a further letter to concerned members asking for clarity around the voting figures reported. [9]
The CFMMEU cited the full bench decision of Veolia Environmental Services (Australia) Pty Ltd v Australian Workers Union (2013) 229 IR 1; [2013] FWCFB 269 and Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union (2012) 227 JR 134; [2021] FWAFB 9512 where they say it confirms that noncompliance with Regulation 2.04 would prove fatal to an application at the approval stage.
While the Applicant acknowledges the relevance of the twin judgments dealing with the mandatory requirement for the issuing of NERRs, they considered situations where a NERR was issued which omitted certain information that rendered the notice inconsistent with the requirements prescribed by section 174 of the Act. The Applicant submitted that this is not the case in the present matter before the Commission.
The CFMMEU contended that employees did not receive the Notice of right to be represented as required under s.173 of the Act and under 2.04 of the Regulations and as such the application is flawed and as such the Enterprise Agreement should not be certified.
In relation to the issuing of the NERR in the present case, the Applicant replied upon the information declared by Mr Higgins at paragraph 18 of the Form 17 Declaration filed as part of the application on 22 April 2022. Relevantly as to the issue of the NERRs, Mr Higgins declared that all the relevant employees who are to be covered by the Agreement received a copy of the NERR on 14 March 2022. In support of Mr Higgins’ declaration, the Applicant also relied upon evidence provided by other attendees at the meeting, including that set out in Mr Armstrong’s Statement. The Applicant submitted that the determination for the Commission as to whether the NERRs were issued is a question of fact.
Mr Higgins also submitted a witness statement in the matter which stated that on 14 March 2022, he performed the daily Glen Eden prestart on the C2SIW site at approximately 6:00am, and that at this prestart meeting he informed the relevant employees of Glen Eden that they were starting the process to establish an enterprise bargaining agreement. Mr Higgins also stated that he then hand delivered the NERR to each of the relevant employees and explained to them that they had a right to union representation during this process.
While the Applicant submitted it is able to demonstrate that it made a NERR available to all relevant employees at the prestart meeting on 14 March 2022, the Applicant further submitted that the failure of any employee not to take the NERR or disregard it afterwards does not render the Applicant having not taken reasonable steps in compliance with its obligations under section 173 of the Act.
Award Access
The Applicant also relied upon the information declared by Mr Higgins at paragraph 21 of the Form 17 Declaration and in the clarification response sought by the Commission.
The Applicant relied on Mr Wells’ Statement which they say demonstrates the obligation was discharged, insofar as complete copies of the Agreement were made available to the relevant employees during the access period.
As to the other incorporated material, section 180(2) of the Act required the Applicant to take reasonable steps to ensure that during the access period, the relevant employees are given a copy or have access to those materials.
The Applicant submits that the relevant employees did have access to the Award at all material times, as the Award is freely available in the public domain. The Applicant also says that it took steps to advise the relevant employees that:
(a)the Award is available to the public on the internet; and
(b)a suitable method of finding the Award on the internet is to use a Google search for “Building and Construction Award 2020”.
The Applicant says these steps were reasonable for the purposes of satisfying its obligations under section 180(2) of the Act, especially when having regard that a Full Bench of the Commission has held that an employer’s obligation does not extend to taking further steps to ensure that employees have access to other incorporated material in an Agreement, such as, legislation, when it was freely available in the public domain.[10]
For these reasons, the Applicant submits that it has met its obligations in relation to giving or enabling access to the relevant material.
Consideration
On the basis of the Form F17 Statutory Declaration and the clarification material provided by the Applicant in respect of whether it has satisfied the requirement of section 180(3) regarding notifying relevant employees of the time and place at which the vote will occur, and the voting method to be used by the start of the access period, I am satisfied that given the chronology of events, sufficient steps were taken such that the Commission could be satisfied all reasonable steps had been taken to communicate the relevant information. To the extent that there may be any doubt the timing of communication given, the initial advice and then subsequent change in the advice about the time, place and method of voting, the error if there was one would fall within section 188(2) as being minor error as it is unlikely employees would have been disadvantaged by it and therefore would not be an obstacle to the approval of the Agreement.
In relation to the question of whether the Applicant took all reasonable steps to give notice of the right to be represented by a bargaining representative, and whether a NERR was issued to employees, I am satisfied on the basis of Mr Higgins evidence and Mr Armstrong’s statement concerning a prestart meeting on 14 March 2022, that Mr Higgins hand delivered to each employee the NERR and explained that bargaining for an agreement was commencing and employees had a right to union representation.
In relation to the requirements of section 180(2) I am satisfied on the basis of the evidence of Mr Higgins and the statement of Mr Wells’ that the Agreement was made available to relevant employees during the access period and any other material incorporated is publicly available.
On the basis of the conclusion above, none of the issues raised provide a basis for not approving the Agreement.
Conclusion
The Applicant has provided written 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
Noting the undertakings, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and will operate in accordance with s.54 of the Act.
COMMISSIONER
[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019]
FWCFB 318, [117].
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid [74].
[6] Ibid Table 2 at row 2.
[7] Attachment A to CFMMEU submissions dated 13 May 2022.
[8] Attachment B to CFMMEU submissions dated 13 May 2022.
[9] Attachment C to CFMMEU submissions dated 13 May 2022.
[10] Re McDonald’s Australia Pty Ltd[2010] FWAFB 4602.
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