JBS Australia Pty Limited
[2012] FWA 8788
•16 NOVEMBER 2012
[2012] FWA 8788 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
JBS Australia Pty Limited
(AG2012/10063)
JBS AUSTRALIA PTY LIMITED - ROCKHAMPTON ENTERPRISE AGREEMENT 2012
Meat Industry | |
COMMISSIONER RIORDAN | SYDNEY, 16 NOVEMBER 2012 |
Application for approval of the JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2012.
[1] JBS Australia Pty Limited (JBS) lodged an application for approval of the JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2012(the Agreement) pursuant to Section 185 of the Fair Work Act 2009 (the Act). The Agreement was intended to apply to the JBS abattoir at Rockhampton. The negotiations for the Agreement were quite lengthy and were subject to protected industrial action by both JBS and the Australasian Meat Industry Employees Union (AMIEU), which opposed the application.
[2] The ballot for the Agreement was conducted by the Australian Electoral Commission (AEC) on 13 and 14 July 2012. There was a very high employee turnout with a narrow majority of employees in favour of the Agreement. The AEC has advised that 387 of the 474 eligible employees covered by the Agreement voted. Of the employees that voted, 194 employees voted to accept the Agreement, 187 opposed the Agreement and six cast informal votes 1.
[3] JBS relied on sworn affidavits from:
Mr Jason Reabel,
Ms Jeongmin Oh,
Mr Changmin Lee,
Mr Vagner Lira,
Mr Graham Ford and
Mr Michael Fliender.
[4] JBS argued that it had consulted widely and appropriately with all staff, that each of the pre approval steps had been met and that the employees had supported the Agreement, albeit by a slight majority.
[5] The AMIEU relied on sworn affidavits from:
Mr Paul Trevor Jenson,
Mr William Jean Sardinha,
Mr Bruce Applewaite,
Mr Lisa Anne Keune and
Mr Greville Francis Sexton.
[6] The AMIEU argued that JBS had failed to meet a number of the necessary pre approval steps required pursuant to the Act and that the Agreement fails the Better Off Overall Test (BOOT).
[7] It is essential that Fair Work Australia (FWA) undertake its assessment with a practical and non technical interpretation of the Act. It is important to ensure that the parties to the agreement have all been treated fairly, reasonably and appropriately throughout the process.
[8] The Notice of Employee Representational Rights (NERR) is an important first step in the process. The parties have conflicting views as to whether or not an appropriate NERR was issued. JBS submitted that the NERR was posted on various Notice Boards around the abattoir.
[9] I am satisfied and find that a NERR was issued by the company either by placing it on various Notice Boards around the facility or by attaching it to an employees’ pay slip many months earlier. However, I am not satisfied that requirements of either s173(1) or (4) in relation to reasonableness have been met.
“173 (1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
a) will be covered by the agreement; and
b) is employed at the notification time for the agreement.
173 (4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.” 2
(my emphasis)
[10] I have inspected the Notice Boards at the abattoir.
[11] The main Notice Board at the entry is approximately 2 metres by 1.5 metres. It is covered by glass. It is a sea of white A4 paper with each piece blending into the other. It is not reader friendly. The NERR that was attached to the application 3 is a non-descript document. It contains no features that would draw it to the attention of any prospective reader. I am satisfied and find that very few employees would read anything on this Notice Board and, certainly, there was nothing about the NERR or the method of its attachment to the Notice Board which would draw employees’ attention to it.
[12] The Notice Board in the canteen is located behind a barrier which, due to health regulations, the majority of employees are not permitted to traverse after they have changed into their work clothing. I am satisfied and find that very few employees would have seen the NERR on this Notice Board.
[13] The ladies lunchroom is very small and, whilst accessible, the majority of employees are not permitted to enter the room. I am satisfied and find that few employees would have seen the NERR on this Notice Board.
[14] The Notice Board located near the Human Resources Department is out of the way and I am satisfied and find that it is rarely viewed by any employee.
[15] Regulation 2.04(7) of the Act states that “The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.”
[16] In University of New South Wales (Professional Staff) Enterprise Agreement 2010 4Vice President Lawler interpreted s.173(1) as requiring an employer to take multiple steps if necessary to ensure that an NERR is available to all groups of employees.
“In my view, s.173(1) on its proper construction, requires that reasonable steps be taken to give the requisite notice to all employees and the requirement that “all” reasonable steps be taken merely underscores that it may be necessary in particular circumstances for the employer to take multiple steps rather than a single step to notify employees because a given step may be “reasonable” in the sense of likely to be effective in respect of one group of employees but not in respect of another group of employees”.
This proposition was upheld on appeal. 5
[17] The common practice at JBS to disseminate information appears to be by placing notices on the Notice Board, lunch tables, amenity doors and sending correspondence to employees’ homes in a variety of languages.
[18] In Ms Keune’s supplementary affidavit 6 she produced an original document said to be a NERR. Ms Keune’s evidence was that she believes that that document was stapled to her payslip some time in 2011. However, the document has no date and is different to the NERR that was posted on the Notice Board and attached to this application. No other witness from either side testified as to any knowledge of this document. In any event a NERR issued at least six months or more prior to the start of the negotiations does not meet, in my view, the necessary proximity test in s.173(4).
[19] There are 140 employees from a non English speaking background employed at the Rockhampton abattoir. The majority of these employees have poor or no English skills 7. These employees are from Brazil, Korea, China, Sudan and Thailand. The NERR was only provided in English.
[20] I do not believe it is fair or reasonable to provide a NERR in a language that is not understood by each employee. I am satisfied and find that provision of such a NERR is not taking "... All reasonable steps to give notice of the right to be represented by a bargaining representative..".
[21] I am also satisfied and find that the content of the NERR provided by JBS was unclear.
[22] Ms Oh is employed as a packer in the boning room. Ms Oh has been used by JBS to interpret documents into Korean in the past and was a witness in these proceedings.
[23] I have concluded that Ms Oh was a leader of the Korean workforce who would have made an ideal representative on the negotiating committee. However, she did not understand what steps had to be followed to be appointed. 8 She did not understand the NERR. It is reasonable to expect that a NERR will be capable of being read and understood by each employee. The fact that the Korean employee used by JBS to translate documents from English into Korean did not understand the NERR is of concern.
[24] JBS demonstrated that it is prepared to have other documents, such as Safety Notices, translated into the Korean and Brazilian Portuguese languages 9. The NERR warranted similar treatment.
[25] As a result of the lack of clarity in the NERR, and the consequent lack of employee understanding, no employee was nominated to participate on the Negotiating Committee. This issue was discussed by the Full Bench in Bland 10O’Callaghan SDP and Kaufman SDP said:
“There might be circumstances where a failure to comply with the requirements of s.173(1) could lead to Fair Work Australia not being satisfied that an agreement was genuinely agreed to. We could envisage a situation where a failure by an employer to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee might lead to a conclusion that the employees who did not receive such a notice and nevertheless voted to approve the agreement did not genuinely agree to it because they had been deprived of the opportunity to appoint a bargaining agent and were thereby prejudiced in the decision-making process. In such a case there would be reasonable grounds for believing that the agreement had not been genuinely agreed to by the employees under s.188(c).”
[26] In the circumstances surrounding this application I am not satisfied that the Agreement has been genuinely agreed to by all employees, particularly those whose first language is not English.
[27] In the circumstances surrounding this agreement the Consultation Committee simply became the Negotiating Committee 11. I am not persuaded that the practice surrounding previous agreement negotiations is relevant when considering compliance with the provisions of the Act in the lead up to vote for a new Agreement. Members of the Consultative Committee are delegates of the AMIEU. They could be appointed by the AMIEU as its representative on the Negotiating Committee, but they could not represent any employee who did not specifically appoint them as their representative. The Union has approximately 50% density at the plant. In accordance with the Act and the rules of the AMIEU, this means that 50% of the employees who were not members of the AMIEU were unrepresented during the negotiations. This has ramifications in relation to the explanation of the Agreement.
[28] The AMIEU submitted that because JBS failed to provide a compliant NERR then the ballot should not have taken place on the basis that JBS cannot satisfy s.188 (a) (ii) of the Act.
“188 An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA 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:
(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)”. 12
[29] This provision has been dealt with a number of times by the Tribunal, the most recent being by Booth C in Ostwald Bros Pty Ltd 13 and on appeal by the Full Bench14. I agree with these decisions that section 188(a)(ii) is a mandatory provision. On the basis that I found that an appropriate NERR was not issued, then I must also find that the Agreement has not met the “genuinely agreed to” test of section 188.
[30] Section 180 (5) and (6) of the Act are also important components of the Agreement process enacted to ensure that the “genuinely agreed to” principle has been met.
“180 (5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees;
(b) the explanation is provided in an appropriate manner taking into account particular circumstances and needs of the relevant employees.
180 (6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.” 15
(My emphasis)
[31] At commencement of employment all employees go through an induction process during which the existing agreement is explained to them in English. The cultural and linguistic difficulties of employees cannot be ignored or glossed over. The inappropriateness of this exercise was embarrassingly obvious at the hearing before me. There is no point in explaining changes to an agreement to employees if they have no comprehension regarding the operation of the existing Agreement.
[32] Significantly, JBS acknowledged this language difficulty during the proceedings when the AMIEU was cross-examining Ms Oh:
“I think there’s clearly an English language barrier and it’s something that’s raised by the union. We understand that and I think that if my friend is going to quote word for word from documents, that it would only be fair to the witness to have the document before her so that she has the opportunity to have a look at it and read it, given the limitations of her capability to be able to comprehend what my friend’s saying and then give an answer”. 16
[33] Agreement briefing sessions were conducted by the company on 27 and 28 June in the main lunchroom. Approximately 140 employees attended each of the four sessions. Each session lasted approximately 30 minutes. A Brazilian Portuguese speaking employee interpreted the meeting for the Brazilian employees. No-one acted as an interpreter in any other language.
[34] Mr Reabel testified that during this meeting he explained the relevant provisions of the Agreement. Numerous witnesses testified as to the way that the meetings were conducted, their capacity to see or hear what was happening and the people who participated in the meeting. Unfortunately, these witnesses provided conflicting evidence.
[35] Having inspected the venue, I have concluded that it would have been challenging to see the speakers, the whiteboard or hear any of the appropriate information from the back of the meeting room.
[36] I am satisfied that the wage increases were explained in detail but I am not satisfied that other provisions, such as the required increase in productivity, the changes to Long Service Leave and the introduction of a work performance clause, whereby employees could be demoted for poor performance, were given anything but a fleeting mention with no explanation. This process failed the test of section 180(5) and (6) of the Act.
[37] Mr Reabel gave evidence that he had advised employees that they could pick up a copy of the Agreement at the Human Relations department. However, under cross examination he agreed that he had made that comment at the meeting of 10 July, just three days before the ballot.
[38] On these facts JBS did not satisfy the requirements of s.180(2)(b). It failed to provide access to the Agreement throughout the access period. 17
“S.180(2)(b)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.” 18
(My emphasis)
[39] In further support of this finding, the Agreement and the meetings of the Consultative Committee/Negotiating Committees were only provided in English. The meeting of 10 July 2012 included a Brazilian and Korean interpreter but this meeting was only called to advise employees of the changed date of the ballot rather than provide a detailed explanation of the Agreement.
[40] I have concluded that the explanation process for the Agreement was haphazard, informal and inappropriate. Written explanations in an appropriate language should have been provided to employees at the meetings on 27 and 28 June 2012. Copies of the Agreement should have been available to all employees in their language and should have been available throughout the entire access period. Negotiating Committee Meeting Minutes should have been provided in a number of languages. This workforce is made up of employees from a number of backgrounds and languages. There are a number of employees on working visas. The needs of these employees should not be a surprise to JBS and they should have been catered for and satisfied.
[41] The meetings undertaken to explain the Agreement should also have been conducted in an atmosphere more conducive to understanding the Agreement. Cramming 140 employees into the canteen whilst attempting to converse with employees in two or three different languages whilst utilizing a single whiteboard to explain the provisions of the Agreement was simply inadequate and unreasonable.
[42] In the days before the ballot a number of information bulletins were produced by JBS and the AMIEU in a variety of languages These bulletins highlighted the strong points of the particular arguments of both parties. They contradicted each other. They were not a concise and unemotive explanation of the proposed Agreement. In the pool of complex and diverse languages at this abattoir, these bulletins would have simply made the whole situation more confusing.
[43] Language restrictions can place onerous requirements upon an employer in relation to the negotiation and explanation of an enterprise agreement. However, there is no alternative. Every employee is entitled to a “fair go”, every employee is entitled to be treated without prejudice, every employee is entitled to have an opportunity to participate, every employee is entitled to have the terms of an Agreement explained to them in a reasonable manner in a language which they comprehend and understand.
[44] I am not satisfied that JBS has satisfied the requirements of s180 (5) and (6).
[45] The AMEIU also submitted that the Agreement did not pass the BOOT pursuant to s193 (1) of the Act. Whilst I am satisfied that the Agreement fails the mandatory pre approval steps I will, for the sake of greater caution, deal with this question.
[46] Clause 16.2 of the Agreement in relation to Casual Employees appears to be inferior to the Award provision and the National Employment Standards (NES) as casuals are required to work a 40 hour week.
[47] I am satisfied that the Daily Hire Allowance is an all purpose allowance. However, even without the Daily Hire Allowance, a part time Level 4 employee working a Friday to Sunday roster would be significantly worse off under the Agreement.
[48] There is also a disadvantage for a full time Level 4 employee who chooses to work an additional day.
[49] Whilst JBS provided an undertaking in its final submissions of the proceedings the undertaking was not in the appropriate form as prescribed by Regulation 2.07 of the Act.
[50] These deficiencies, in relation to the BOOT, may have been able to be remedied by an undertaking had the mandatory pre approval steps been complied with.
[51] The final issue in contention concerned the capacity of the employer to extend the Notice Period. Also for the sake of greater caution I have decided to deal with this issue.
[52] JBS gave notice on 4 July, 2012 that it intended to conduct a ballot on 11 and 12 July 2012. The notice was six days. This notice did not satisfy section 180 (4);
“180(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).” 19
[53] When JBS realised its mistake it modified the ballot date by extending the notice period by a further 2 days i.e. to 13 and 14 July, 2012. The employees were notified of this extension on July 10.
[54] The AMIEU submitted that JBS had no capacity to make this amendment. A strict application of the Section might support this view but I am satisfied that the extension of the access period satisfies the principle of practicality enunciated in McDonalds. 20 No employee was disadvantaged or discriminated against because of the time extension.
[55] Whilst from a practical point of view such modifications or variations should be discouraged, in this case the modified ballot timetable did not disenfranchise any employee or group of employees. There were no additional changes to the Agreement and the ballot still occurred on site, albeit two days later than originally notified. All employees were at work. Whether they voted on 11 and 12 July or 13 and 14 July was of little practical consequence.
Conclusion
[56] I am satisfied that JBS did not set out to discriminate against any employee. It believed that it was doing the right thing by following the same process as it had done for many years. However, they were wrong. The negotiating process and the pre approval steps undertaken by JBS were sloppy and non compliant with the Act. JBS has a culturally diverse and multilingual workforce. The considerations arising from the employment of such a workforce were not taken into account in the process engaged in by JBS.
[57] The requirements of the Act are complex and this situation is made more difficult by the language diversity at the abattoir. Any number of witnesses, from both sides, had difficulty recalling precise information in relation to commentary and dates. Paperwork was undated and poorly or randomly circulated.
[58] It is obvious that a number of employees have not been afforded an appropriate or reasonable level of fairness in the process because of their lack of comprehension of the English language. These employees were unrepresented throughout the entire negotiation process. To ask them to determine their employment conditions by way of a ballot following an intense and spirited campaign by the industrial parties, but without an appropriate explanation of the Agreement, was inherently unfair. The Actis based on principles of fairness and equity. In its operation the concept of a “fair go” is extended to all facets of the employment relationship, including the making of an enterprise agreement.
[59] Many may have voted in favour of the Agreement, but I am satisfied and find that they did so, without the requisite explanation. I find it impossible to conclude that these employees genuinely agreed to the Agreement. The Agreement cannot be approved because of this “unreasonableness” alone.
[60] The advocate for JBS raised a serious allegation in relation to the AMIEU’s advocate in its final submission. I categorically reject this allegation. It has no foundation, is inaccurate and unfortunate.
[61] The application for approval of the Agreement is refused.
COMMISSIONER
1 Exhibit JBS 1 - Tab 14
2 Fair Work Act 2009
3 Exhibit JBS 2
4 [2010] FWAA 9588
5 [2011] FWA 5163
6 Exhibit AMIEU 8
7 Exhibit AMIEU 1 Para 12
8 Transcript - PN806
9 Transcript - PN305
10 Bland v CEVA Logistics (Australia) Pty Ltd[2011] FWAFB 7453 Para 43
11 Ibid - PN 617-618
12 Fair Work Act 2009
13 Ostwald Bros Pty Ltd [2012] FWA 6450
14 Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWFB 9512
15 Fair Work Act 2009
16 Transcript - PN719
17 MSS Security Pty Ltd [2010] FWA 3687
18 Fair Work Act 2009
19 Fair Work Act 2009
20 McDonald's Australia Pty Ltd v Shop, Distributive and Allied Employees' Association [2010] FWAFB 4602
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