Hewlett-Packard Australia Pty Ltd
[2022] FWC 2232
•22 AUGUST 2022
| [2022] FWC 2232 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Hewlett-Packard Australia Pty Ltd
(AG2022/2067)
One HPE enterprise agreement 2022
| Technical services | |
| COMMISSIONER P RYAN | SYDNEY, 22 AUGUST 2022 |
Application for approval of the One HPE Enterprise Agreement 2022
Introduction and Background
Hewlett-Packard Australia Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the One HPE Enterprise Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.
The Agreement was made on 16 June 2022, with 196 of 405 employees casting a valid vote, and 130 of 196 employees voting to approve the Agreement.
The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) was a bargaining representative for the Agreement and supports the approval of the Agreement.
In addition to the APESMA, there were 27 employee bargaining representatives for the Agreement.
Two of the employee bargaining representatives, Mr Matthew Brown and Mr Shane Seymour, filed a Form F18A objecting to the approval of the Agreement.
The grounds of objection set out in the Form F18A filed by Mr Brown related to the conduct of bargaining. The grounds of objection set out in the Form F18A filed by Mr Seymour related to claims made during bargaining and the Employer’s consideration of those claims.
The Employer was provided with a copy of the Form F18A’s and invited to provide a response.
Following the filing of the Employer’s response, Mr Seymour advised my chambers that he no longer pressed those matters.
Mr Brown filed further material in support of his objection to the approval of the Agreement.
The matter was then listed for conference on 3 August 2022, which was attended by the Employer, the APESMA, and 11 employee bargaining representatives, including Mr Brown and Mr Seymour.
The matter was unable to be resolved at the conference and each of the parties advised that they would like the matter determined on the materials before the Commission.
Objection by Matthew Brown
The ‘key issue’ of objection relied on by Mr Brown is that the Employer did not circulate a list of employee bargaining representatives or otherwise disclose the details of the other employee bargaining representatives, with the result that bargaining meetings were conducted ‘anonymously’.
Mr Brown also relied on the following grounds in objecting to the approval of the Agreement:
·The bargaining meetings were too short and were concluded abruptly at the end of the allocated time;
·The employer did not provide minutes of bargaining meetings or a consolidated list of claims raised by bargaining representatives; and
·The bargaining meetings, conducted by telephone, were unproductive as bargaining representatives were talking over each other and asking repetitive questions.
During the conference, Mr Sean Brunett, Mr David Coucke and Mr Andrew Pywell, each being an employee bargaining representative, supported the objection raised by Mr Brown.
Employer Response
The Employer submitted that at all times it complied with the good faith bargaining requirements.
In response to the grounds raised by Mr Brown, the Employer submitted:
·The bargaining meetings were not anonymous and during the meetings the participants announced their identity, location and function/role as they spoke to claims or issues;
·That various claims were advanced by the bargaining representatives and in each case, the bargaining representatives were as a group, advised that the request or claim would be considered and responded to;
·That following bargaining meetings, the Employer corresponded with all of the bargaining representatives responding to issues and/or clarifying the content of the next meeting. In this respect, the Employer submitted a copy of an email dated 25 May 2022 which attached a copy of a draft enterprise agreement and provided a response to an issue concerning graduate engineers that had been raised in a previous meeting; and
·No bargaining representative requested or made reference to the need for external representation.
The Employer submitted that the concerns raised by Mr Brown are concerns that may have been the subject of an application for a bargaining order during bargaining but are not matters which are relevant to the approval of the Agreement.
Relevant Legislative Provisions
Section 188 of the FW Act provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
(1)An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i)subsections 180(2), (3) and (5) (which deal with pre‑approval steps);
(ii)subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b)the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
(2)An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”
Consideration
In coming to this decision, I have had regard to the materials filed and the matters raised at the conference, even if they are not expressly referred to in this decision.
There was no dispute as to the matters set out in ss.188(1)(a) and (b) of the FW Act, and I am satisfied that the Employer has complied with those requirements and that the Agreement was made in accordance with s.182(1).
The issue before the me is whether I am satisfied that there are other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.[1]
In Re KCL Industries Pty Ltd[2], the Full Bench adopted the detailed analysis of decided cases relevant to the proper interpretation and application of s.188(c) of the FW Act (as s.188(1)(c) then was) of Deputy President Asbury in Re Central Queensland Services Pty Ltd (t/as BHP Billiton Mitsubishi Alliance).[3]
The consideration under s.188(1)(c) is not limited to a consideration of whether there has been coercion or misinformation and incorporates all relevant circumstances surrounding the process by which employees indicate their agreement.[4]
In my view the matters raised by Mr Brown are not matters that go to misinformation or coercion in the context of employees indicating their agreement. The matters raised go to the efficiency or otherwise of bargaining and are matters that would be relevant in the context of an application for a bargaining order[5] or an application for the Commission to deal with a bargaining dispute.[6]
Accordingly, I am not satisfied that there are reasonable grounds for the Commission to find that the Agreement was not genuinely agreed to.
I am satisfied that the Agreement was genuinely agreed to by the employees as required by s.188 of the FW Act. I am also satisfied that all other requirements have been met and that the Agreement is capable of approval. I will issue a separate decision approving the Agreement.
COMMISSIONER
[1] Section 188(1)(c) of the FW Act.
[2] [2016] FWCFB 3048.
[3] [2015] FWC 1554.
[4] Ibid at [71].
[5] Section 229 of the FW Act.
[6] Section 240 of the FW Act.
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