Hale School
[2012] FWA 5980
•19 JULY 2012
[2012] FWA 5980 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Hale School
(AG2012/5444)
COMMISSIONER CLOGHAN | PERTH, 19 JULY 2012 |
Hale School Non-Teaching Staff (Enterprise Bargaining) Agreement 2012.
[1] On 18 May 2012, Hale School (“the Applicant”) made application to Fair Work Australia (FWA) for approval of a single enterprise agreement to be known as the Hale School Non-Teaching Staff (Enterprise Bargaining) Agreement 2012 (“the FWA Agreement”).
[2] The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).
[3] The FW Agreement was approved by a ballot of employees which concluded on 7 May 2012.
[4] Of the 176 employees to be covered by the FWA Agreement, 132 employees cast a valid vote. Of the 132 employees who cast a valid vote, 131 employees voted to approve the proposed agreement.
[5] FWA must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, and sections 187 and 188 of the FW Act are met.
[6] On 28 May 2012, my Associate communicated with the Applicant seeking to reconcile the fact that the Independent Education Union of Australia, Union of Employees (IEU) is the only named bargaining representative for employees, however; United Voice; the Construction, Forestry, Mining and Energy Union of Workers (CFMEU); the Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Workers of Australia, Engineering and Electronic Division (CEPU) and the Australian Nursing Federation (ANF) (collectively “the Unions”) are named as parties to the FWA Agreement. Further, the FWA Agreement provides an area for the Unions signatures, however no signatures, with the exception of a representative of the IEU, were provided. A copy of my Associate’s email communication was provided to the IEU.
[7] On 29 May 2012, Mr Timmins, for the Applicant, provided a response which advised that United Voice, CFMEU, CEPU and ANF “were not appointed as bargaining representatives”. Further, that the previous agreement was an Industrial Agreement registered in the Western Australian Industrial Relations Commission (WAIRC) pursuant to section 41 of the Industrial Relations Act 1979 (WA). The Agreement registered in the WAIRC is known as the Hale School Non-Teaching Staff (Enterprise Bargaining) Agreement 2009 (“the WAIRC Agreement”). The WAIRC Agreement nominally expired on 31 December 2011. Hale School advised that, at the time of lodging the WAIRC Agreement, the IEU had arranged for the signing of the agreement by the Unions.
[8] With respect to the FWA Agreement, Mr Timmins advised that the IEU had returned the agreement to Hale School with its signature only.
[9] As a consequence of the circumstances in paragraph [7] above, my Associate sought the views of United Voice, CFMEU, CEPU and ANF.
[10] On 1 June 2012, United Voice advised that it had only become aware of the FWA Agreement as a result of my Associate’s email; however, it was a bargaining representative. The CEPU advised that it was not a bargaining representative, not involved in the bargaining process, did not intend to sign the FWA Agreement or make any declaration regarding its approval. The CFMEU and ANF did not provide a response to my Associate’s email.
[11] As a result of the responses and, in particular a further detailed response from United Voice, I held a conference on 14 June 2012. The conference was attended by representatives of Hale School, United Voice, ANF and IEU.
[12] The conference considered a “way forward” given the circumstances.
[13] A further conference was held on 5 July 2012 where the parties were unable to agree on a “way forward” and consequently, it is necessary for me to consider whether I am satisfied that the application has been made in accordance with the relevant provisions of the FW Act.
RELEVANT LEGISLATIVE FRAMEWORK
[14] Relevant sections of the FW Act are as follows:
● Section 185 - Bargaining representative must apply for FWA approval of an enterprise agreement
Application for approval
(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.
(1A) …
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) …
(4) …
Signature requirements
(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.
● Section 186 - When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) …
Requirement that the group of employees covered by the agreement is fairly chosen
(3) …
(3A) …
Requirement that there be no unlawful terms
(4) …
Requirement that there be no designated outworker terms
(4A) …
Requirement for a nominal expiry date etc.
(5) …
Requirement for a term about settling disputes
(6) …
(my emphasis)
● Section 187 - When FWA must approve an enterprise agreement—additional requirements
Additional requirements
(1) This section sets out additional requirements that must be met before FWA approves an enterprise agreement under section 186.
Requirement that approval not be inconsistent with good faith bargaining etc.
(2) FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.
Requirement relating to notice of variation of agreement
(3) …
Requirements relating to particular kinds of employees
(4) …
Requirements relating to greenfields agreements
(5) …
(my emphasis)
● Section 228 - Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
(2) …
(my emphasis)
CONSIDERATION
[15] It is necessary for me to consider whether the application has been made in accordance with the provisions of the FW Act as outlined above in paragraph [14].
[16] On 21 September 2011, Mr Timmins advised the relevant staff that it wished to commence bargaining for a replacement enterprise agreement to the WAIRC Agreement.
[17] Mr Timmins gave notice of representational rights under the FW Act.
[18] The memorandum to staff properly advises:
“You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in any matter before Fair Work Australia about bargaining for the agreement.
Your can do this by notifying the Headmaster or myself that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must provide a copy of the appointment in writing to the Headmaster or myself.
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative”. (my emphasis)
[19] Subsequently, bargaining for a replacement agreement took place within a Liaison Committee. A copy of the proposed agreement was properly given to staff prior to the voting process.
[20] I accept, without reservation, that Hale School did not deliberately intend to misdirect itself with regard to the Unions being the “default” bargaining representative for those employees who had not nominated themselves or another person as their bargaining representative. It is not in dispute that the IEU was notified of its status as bargaining representative for its members.
[21] There is no dispute that United Voice and the ANF have membership of employees at Hale School and should have been notified, similar to the IEU, of their status as bargaining representatives for the bargaining process. I say the Unions should have been notified of their status as bargaining representatives because: the inference in the Notice of Representational Rights given to employees on 21 September 2011; the fact that the WAIRC Agreement acknowledged and recognised the Unions as party to the agreement, and finally, that the proposed replacement agreement provided for the Unions to be signatories to the FWA Agreement. In addition, it would not have been unreasonable for employees to assume, having been provided with a draft agreement which contains a blank signatories page with provision for the Unions to sign, that the Unions had been involved in the bargaining process and had endorsed the proposed agreement. As I have previously stated, the Applicant’s actions were not deliberate but a continuation of past practice where industrial agreements were negotiated within the Western Australian jurisdiction.
[22] United Voice and the ANF, having automatically become bargaining representatives, were not notified (unlike the IEU) of their status and ability to represent their members during the bargaining process. Further, having not been notified of their roles as bargaining representative, United Voice and the ANF were not able to access various rights pursuant to Part 2-4 of the FW Act. I would again emphasise that I do not consider Hale School deliberately intended to avoid its obligations under the FW Act, because it did not with respect to the IEU, but simply followed past practice.
[23] Pursuant to paragraph 176(1)(a) of the FW Act, the employer, in this case the Governors of Hale School T/A Hale School, is a bargaining representative of the FWA Agreement. As a bargaining representative, it is required to meet the good faith bargaining requirements set out in s.228 of the FW Act.
[24] The relevant requirements for good faith bargaining are set out in paragraphs (a)-(f) of subsection 228(1) of the FW Act. However, these requirements were unable to be applied to United Voice and the ANF as they had not been notified of their status as bargaining representatives, and consequently be recognised and bargained with, on behalf of their members.
CONCLUSION
[25] For the reasons set out above, I am satisfied that to approve the proposed agreement would be inconsistent with the requirements of good faith bargaining. Accordingly, the proposed FWA Agreement does not meet the requirement in subsection 187(2) of the FW Act and I am unable to approve the application.
COMMISSIONER
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