Harbour City Ferries Pty Ltd
[2014] FWCA 1888
•31 MARCH 2014
[2014] FWCA 1888 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Harbour City Ferries Pty Ltd
(AG2014/416)
HCF SALARIED AND SENIOR STAFF AGREEMENT 2014
Clerical industry | |
COMMISSIONER CARGILL | SYDNEY, 31 MARCH 2014 |
Application for approval of the HCF Salaried and Senior Staff Enterprise Agreement 2014.
[1] An application has been made for approval of an enterprise agreement known as the HCF Salaried and Senior Staff Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Harbour City Ferries (HCF). The Agreement is a single-enterprise agreement.
[2] The application for approval of the Agreement discloses that there were three employee organisations (unions) which were bargaining representatives involved in the agreement making process. Those organisations are:
● The Australian Institute of Marine and Power Engineers (AIMPE);
● Australian Municipal, Administrative, Clerical and Services Union, New South Wales and ACT (Services) Branch (ASU); and
● The Maritime Union of Australia (MUA).
[3] Each of the three unions has provided a statutory declaration, Form F18, in relation to the application. Each has indicated that it wants to be covered by the Agreement. AIMPE supports the approval of the Agreement. The ASU and MUA neither support nor oppose the approval. The ASU and MUA each raise concerns about the pre-approval process and note that, prior to the receipt of HCF’s statutory declaration in support of the application, they had not been aware of the particular awards being relied upon for the purpose of the Better Off Overall Test (the BOOT). As a consequence they had not had sufficient time to consider whether the Agreement satisfied the BOOT.
[4] HCF was asked to respond to the issues raised by the ASU and MUA. It was also asked to provide undertakings to address specific concerns which I had in relation to the redundancy and notice of termination provisions of the Agreement, clauses 50, 53 and 54. Clarification was also sought in relation to what appeared to be typographical or clerical errors in HCF’s Forms F16 and F17.
[5] HCF has provided written undertakings which meet the concerns which I had with clauses 50, 53 and 54 of the Agreement. Pursuant to section 190(4) of the Act I sought the views of each of the three unions as the only known bargaining representatives for the Agreement. In an email dated 19 March 2014, the ASU indicated that the undertakings appeared to address the concerns I had raised. No views have been expressed on the undertakings by AIMPE or the MUA.
[6] HCF has provided replacement Forms F16 and F17 which have corrected the various errors and contradictions in the original forms.
[7] In correspondence dated 14 March 2014 and an email dated 18 March 2014, HCF responded to the issues raised by the ASU and MUA. The ASU and MUA each replied in separate letters both dated 21 March 2014.
[8] The issue in relation to whether or not HCF has complied with the relevant pre-approval requirements of the Act revolves around the provisions of section 180(2),(3) and (4). There does not appear to be a dispute about the relevant facts which are as follows. On the evening of 5 February 2014, HCF sent by email to all relevant employees an EBA Staff Bulletin and a copy of the proposed agreement. There is an internal inconsistency in the correspondence from HCF as to the time the emails were sent. In the second bullet point in the letter of 14 March HCF says it was 7:25pm. In the sixth bullet point it says it was 18:23. This latter time accords with the time on the actual email.
[9] The Staff Bulletin which was sent to employees included a summary of what HCF says are enhanced conditions in the proposed agreement. The Bulletin also informed employees that the vote in relation to the agreement would take place between 8:30am on 13 February and 17:00 on 14 February and would be conducted by an electronic voting process. The link to the ballot site was provided to employees by email sent at 4:49pm on 12 February.
[10] HCF submits that email is an appropriate means of communication with this sector of its workforce and had been used throughout the bargaining process. I do not understand the ASU or MUA to be disputing the use of this particular method of communication in this instance. The issue between the two unions and HCF is whether the relevant material was provided to employees prior to the start of the access period.
[11] HCF submits that it has complied with the pre-approval requirements and, in particular, that it provided the relevant material to employees prior to the start of the access period. It notes that “day” is not defined in either the Act or the Acts Interpretation Act 1901. Further, there is no reference to “business hours” or “business days” in the Act. HCF submits that, consequently, because the notification of the material specified in section 180(2) and (3) was given to employees before 23:59 on 5 February, the access period of seven clear days was provided.
[12] HCF submits that, in any event, the nature of its business is that some of the relevant employees are rostered to work outside of “usual business hours”. HCF disagrees with the unions that notice given on the evening of 5 February was not effective or was insufficient to discharge its obligation to take all reasonable steps to notify.
[13] HCF submits that its actions are similar to having placed a written notice on a notice board on the day prior to the access period in circumstances where not all employees would see the notice. In this regard it relies upon the decision in MSS Security [2013] FWCA 1474 (MSS Security). HCF notes that the statutory obligation is to take all reasonable steps, not to ensure that each employee actually receives the material prior to the access period.
[14] The ASU and MUA note that there appears to be no difference between the parties as to the method of calculating the access period and rely on the decision in McKechnie Iron Foundry Pty Ltd [2010] FWA 3171 (McKechnie).
[15] The two unions reject HCF’s reliance on the decision in MSS Security and submit that the facts in that matter are distinguishable from those in the present case. The employer in MSS Security used both post and its intranet system to notify its employees. It was the combination of both which had satisfied the relevant Member that the employer had met its obligations. There was no dispute in that case that the notification by way of the intranet had been provided prior to the start of the access period. Also, MSS Security did not have total control over the timing of the receipt of the material sent by post.
[16] The two unions submit that, in this case, HCF used only one method of communication and did not provide any of the required material to employees prior to the access period. Further, HCF knowingly sent the material to employees after business hours on 5 February in circumstances where it was aware that a large number of employees would not see it until they commenced work on 6 February.
[17] The ASU and MUA submit that it was open to HCF to have sent the emails with the relevant material during business hours on 5 February. It has provided no explanation as to why it did not do so. Consequently it cannot be said that its actions constituted “all reasonable steps to notify”.
[18] The ASU notes that HCF was on notice of its concerns prior to the ballot but refused to cancel the ballot.
[19] The two unions submit that HCF’s failure to comply with section 180(2) and (3) must lead to the conclusion that the Agreement cannot be approved. They rely on comments at paragraph 10 of McKechnie where Senior Deputy President O’Callaghan notes that the requirements of the section are mandatory and that there is no licence or jurisdiction to approve an agreement where there has been a failure to comply with the requirements of the section.
[20] In order to decide this issue it is necessary to consider the relevant parts of section 180 which read as follows:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).”
[21] I consider that it is important to note that subsection (4) defines the access period for a proposed agreement as being the seven day period which ends immediately before the start of the voting process rather than immediately prior to the day on which the voting process begins. This suggests that it may not necessarily have to be a period of seven calendar days but instead could be seven blocks of 24 hours each. Section 36 of the Acts Interpretation Act deals with the calculation of periods of time but does not cover this particular situation.
[22] As indicated earlier, the voting process for the Agreement commenced at 8:30am on 13 February 2014. In my view it would be reasonable to conclude, in the absence of anything to the contrary, that the employees had access to the Agreement and the EBA Staff Bulletin at 8:30am on 6 February. Even if any of the employees had not actually accessed the material at that time I am prepared to find that HCF took all reasonable steps to ensure that they did so. It follows that I am satisfied that HCF has complied with the requirements of section 180.
[23] I note that the MUA also expressed concern that the link to the ballot site was not provided until the afternoon of 12 February. I presume that was probably to ensure that employees did not attempt to vote prematurely. In any event, it does not detract from the fact that the details of the voting process were provided in the Staff Bulletin emailed on 5 February.
[24] I have considered the issue of the modern awards relied on by HCF and whether the Agreement passes the BOOT. On the basis of the material at questions 3.4 and 3.5 of the Form F17, which is identical in the original and replacement versions, and a comparison of the Agreement with both the Clerks Private Sector Award 2010 and Manufacturing and Associated Industries and Other Occupations Award 2010, I am satisfied that the Agreement passes the BOOT.
[25] I am satisfied the undertakings provided by HCF meet any concern I have in relation to the Agreement. In accepting the undertakings I have also accepted they are not likely to either cause financial detriment to an employee or result in substantial changes to the Agreement (s.190(3)). I note that under s.191 of the Act the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement.
[26] I am also satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.
[27] As noted earlier, each of the three unions has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisations. The Agreement has been signed by HCF and by AIMPE. The ASU indicated that it wished to sign the Agreement if it is approved.
[28] The Agreement is approved and, in accordance with s.54, will operate from 7 April 2014. The nominal expiry date is two years from the date of approval.
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