John Holland Pty Ltd (NSW / ACT)
[2009] FWA 1774
•18 DECEMBER 2009
[2009] FWA 1774 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/15042)
John Holland Rail Pty. Ltd, The Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union, Hunter 8 Alliance, New South Wales Agreement 2009
COMMISSIONER CARGILL | SYDNEY, 18 DECEMBER 2009 |
John Holland Rail Pty. Ltd, The Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union, Hunter 8 Alliance, New South Wales Agreement 2009.
[1] This decision concerns the question of whether the Construction, Forestry, Mining and Energy Union (CFMEU) has standing to be covered by the John Holland Rail Pty. Ltd, The Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union, Hunter 8 Alliance, New South Wales Agreement 2009 (the Agreement).
[2] The Agreement was lodged with Fair Work Australia (FWA) on 23 September 2009. The application form, Form F16, noted that there were two employee organisations that were bargaining representatives for the Agreement. These were: The Australian Workers’ Union (AWU), and, the Australian Rail, Tram and Bus Union (RTBU). The application was accompanied by two declarations of employee organisations in support of approval of the Agreement, Form F18. Those declarations were by the AWU and the RTBU respectively. Each of those organisations also provided a notice for employee organisation to be covered by the Agreement, Form F22.
[3] The Agreement was approved by me in a decision dated 2 October 2009. Shortly after approving the Agreement, I became aware that the CFMEU had lodged a Form F22 (the Form) with FWA at 4.19pm on 1 October 2009. That form noted that the CFMEU was a bargaining representative for the Agreement.
[4] I caused enquiries to be made by my Associate of the employer John Holland Rail Pty. Ltd. (John Holland Rail or the company) as to its view about the issue. In correspondence dated 6 October 2009 the company stated that, regardless of its view, the Fair Work Act 2009 (the Act) did not allow the CFMEU to be covered by the Agreement. This was said to be on the basis that all of the employees who were eligible to vote on the Agreement had appointed either the AWU or the RTBU as their bargaining representative.
[5] A copy of this correspondence was provided to the CFMEU. In correspondence dated 8 October 2009 the CFMEU disputed the company’s position. As a consequence of these different views I listed the matter for hearing on 13 October 2009.
[6] At the hearing the company was represented by Mr Ludeke, solicitor, who appeared with permission. The CFMEU was represented by Ms Charlson, its Industrial/Legal Officer. The RTBU was represented by Mr Nanva. There was no appearance by the AWU although it had been notified of the hearing.
[7] At the hearing Mr Ludeke made a number of submissions in opposition to the CFMEU’s standing in the matter. It should be noted that there was no submission that FWA was functus officio in relation to the issue because of the fact that the Agreement had already been approved.
[8] As a result of difficulty in obtaining instructions, Ms Charlson sought an adjournment of the matter. Ultimately it was agreed that the matter should be dealt with by way of written submissions. A timetable was put in place for the filing and exchange of material. Unfortunately, because of a difficulty with the provision of Transcript, that timetable had to be adjusted.
[9] The CFMEU provided written submissions in response to Mr Ludeke’s oral submissions at the hearing. It also provided written submissions in reply. Written submissions were provided on behalf of John Holland Rail. Both parties confirmed orally that a further hearing was not required.
[10] There have been no submissions, written or oral, and no request for any further hearing from either the RTBU or the AWU.
[11] It should be noted that there are three submissions put against the CFMEU’s standing. First, that the CFMEU was not a bargaining representative at the requisite time and hence cannot give notice that it wants to be covered by the Agreement. Secondly, that the CFMEU has not complied with section 183 in that it failed to give the required notice of the Form F22 to the company. Thirdly, that the CFMEU has not complied with section 185(2) by its failure to provide a Form F18, Declaration of Employee Organisation in Support of Approval of Enterprise Agreement.
[12] A more detailed summary of these submissions is provided later in the decision however this brief outline will assist in understanding the evidence provided by both the CFMEU and John Holland Rail.
EVIDENCE
[13] The CFMEU has provided two statements. The first is an affidavit by Mr W Kelly, State Organiser with the union. The second is a witness statement by Mr R Cunningham, who is also an Organiser with the union.
[14] Mr Kelly’s affidavit deals with the issue of whether the union provided John Holland Rail with a copy of the Form F22. Mr Kelly’s evidence is that he was aware that a copy of the Form had to be provided to John Holland Rail. He had previously dealt with Mr Powell, the company’s Employee Relations Manager, and understood that he would be the appropriate person to whom the Form should be directed. Mr Kelly’s evidence is that he had previously received an email from Mr Powell which showed a particular fax number (the particular fax number).
[15] Mr Kelly says that, around 4pm on 1 October 2009, he attempted to fax a copy of the Form to the particular fax number. This was unsuccessful. Mr Kelly then viewed a number of John Holland web pages in order to find an alternative fax. His evidence is that, late in the afternoon of that same day, he faxed a copy of the Form to the alternative number (the alternative fax number). He did not wait for a transmission sheet as he was very busy and was going on annual leave the following afternoon.
[16] Mr Kelly’s evidence is that, on 29 or 30 October 2009, he contacted the manufacturers of the CFMEU’s fax machine to request a transmission report for 1 October. He was informed that the machine only provides the last 40 transmissions on a report.
[17] Mr Kelly’s evidence is that the machine automatically prints out reports. The union does not store these and Mr Kelly believes that the relevant reports have been destroyed.
[18] Mr Cunningham’s evidence is that he first became aware of the particular rail construction project that is covered by the Agreement on 11 September 2009. On 17 September 2009 he met with Mr Powell and another employer representative and discussed site protocols, inductions and the scope of the project.
[19] Mr Cunningham’s evidence is that he asked Mr Powell about the agreement that would cover John Holland employees on the project. He was informed that the company had negotiated an agreement with the CFMEU. Mr Cunningham’s evidence is that Mr Powell told him that he understood a number of John Holland employees were CFMEU members.
[20] Mr Cunningham says that Mr Powell promised to send him a copy of the new agreement. There was no mention of a site specific agreement.
[21] Mr Cunningham’s evidence is that he had to remind Mr Powell to send the agreement. He finally received it on 30 September. The agreement did not include the CFMEU.
[22] Mr Cunningham’s evidence is that there are a number of CFMEU members working on the project. He spoke to one of these members who is employed by John Holland Rail, Mr S Keable. Mr Cunningham’s evidence is that Mr Keable informed him that he participated in the ballot for the Agreement. Mr Keable also informed him that he had not nominated anyone as his bargaining representative.
[23] John Holland Rail provided an affidavit by Mr Powell, Employee Relations Manager, NSW Division of John Holland Group Pty Ltd. John Holland Rail is a wholly owned subsidiary of John Holland Group Pty Ltd. Mr Powell had conduct of negotiations for the Agreement.
[24] Mr Powell’s evidence is that, as far as he was aware, the machine with the particular fax number was operating normally on 1 October 2009. He provided a copy of the log sheet for incoming calls on that day. Mr Powell says the report does not show any incoming fax from the CFMEU’s main fax number.
[25] Mr Powell’s evidence is that the machine with the alternative fax number is not one he normally uses. He has been advised that that machine was working as usual on 1 October 2009. He provided a print out of the log sheet from the machine for the relevant period. Mr Powell’s evidence is that this shows that there is no record of an incoming fax from the CFMEU’s machine. There is a record of one incoming fax of one page from an unidentified number. The Form is of two pages.
[26] It should be noted that it appears that the two log sheets attached to Mr Powell’s affidavit have been transposed. Attachment HP-1, which is said to be the report for the particular fax number, is actually the report for the alternative number and vice versa with Attachment HP-2. Nothing turns on this and the CFMEU submissions are directed to the relevant reports.
[27] Mr Powell’s evidence is that neither John Holland Rail nor any other entity in the John Holland Group has been given the Form either on 1 October 2009 or subsequently.
[28] Mr Powell’s evidence is that he agrees that Mr Keable is an employee of John Holland Rail and that Mr Keable did not nominate a bargaining representative. He says however that Mr Keable was not employed until after 27 July 2009.
[29] Mr Powell’s disputes Mr Cunningham’s recollection of their discussions.
SUBMISSIONS ON BEHALF OF JOHN HOLLAND RAIL
[30] As indicated earlier, there are three contentions put on behalf of the company. The first, put in Mr Ludeke’s oral submissions, is that the CFMEU was not a bargaining representative, either nominated or by default, at the “notification time” as defined in section 173(2) of the Act and hence cannot be covered by the Agreement.
[31] Mr Ludeke notes that he has been instructed that the “notification time” was 27 July 2009. He has been further instructed that the company provided the notice of employee representational rights to each of the 25 employees who were employed as of 27 July. Those notices were provided within the requisite 14 day period after the notification time. Mr Ludeke submits that it is those 25 employees alone who control who may be the bargaining representatives for the Agreement.
[32] Mr Ludeke submits that, of the 25 employees, 23 provided written nomination of either the AWU or the RTBU as their bargaining representative. The remaining two employees are members of the RTBU which became their default bargaining representative.
[33] Mr Ludeke submits that what happens after the notification time is largely irrelevant. It does not matter if new employees, who may or may not be CFMEU members, are employed. Mr Ludeke submits that the scheme of the Act is that there is no ongoing ability for new employees to nominate a bargaining representative. He submits that there are good policy reasons for this approach. The appointment of new bargaining representatives might have the effect of disrupting the bargaining negotiations.
[34] Mr Ludeke submits that the question of whether or not any new employees voted on the Agreement is not to the point. The issue is whether or not the CFMEU was a bargaining representative, either nominated or by default, at the “notification time”. It wasn’t and therefore has no standing to be covered by the Agreement.
[35] The second contention put by the company is that the CFMEU has failed to comply with the provisions of section 183(2) of the Act in that it has not given the required Form F22 to John Holland Rail. It is submitted that this failure is fatal to the CFMEU and is not capable of being rectified. The wording of the section is mandatory and there is no ability for FWA to waive compliance or exercise any discretion.
[36] It is submitted that the company has put on such direct evidence as it has by way of Mr Powell’s affidavit. However, it cannot “prove a negative”.
[37] The onus of establishing compliance with the section lies with the CFMEU. Mr Kelly’s affidavit, if accepted, is evidence only that the CFMEU attempted to give the Form to the company, not that it did. It is submitted that the words of the section are plain; the Form must be given. Attempting to give it is not enough.
[38] It is submitted that there are omissions from the CFMEU evidence as to how it has gone about meeting its onus of establishing that it gave the Form to the company. Mr Kelly and the union have shown inertia in dealing with the matter by not securing transmission reports and by failing to email the document to Mr Powell despite having his email address.
[39] It is also submitted that the union has been tardy in making enquiries of the fax machine’s manufacturer to obtain another copy of the transmission sheets or logs. It is noted that, although the issue was raised at the proceedings on 13 October, the union apparently took no steps for over two weeks. It is submitted that this indicates the CFMEU did not take the matter seriously.
[40] The third contention put by the company is that the CFMEU has not complied with the provisions of section 185(2)(b) in that it has failed to lodge a Form F18, Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement (Form F18). It is submitted that this requirement is also mandatory. Reference is also made to the provisions of section 585 which require applications to FWA to be in accordance with the procedural rules.
[41] It is submitted that the CFMEU’s wish to be covered by the Agreement must be refused.
SUBMISSIONS OF THE CFMEU
[42] The CFMEU submits that the company’s construction of the Act, especially the operation of section 173, is too narrow. It disagrees that, because Mr Keable was not an employee on 27 July 2009 and did not receive a notice of employee representational rights, he therefore has no right to appoint a bargaining representative. The union also disputes the company’s contention that, as a consequence, the CFMEU has no right to be recognised as a bargaining representative.
[43] The CFMEU contend that, by operation of section 176(1)(b), it is a bargaining representative and is therefore entitled to give notice of its desire to be covered by the Agreement. It further contends that the company’s submission confuses the statutory obligation imposed on it by section 173 with the provisions which allow employees to appoint bargaining representatives.
[44] The CFMEU refers to paragraph 715 of the Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum). It submits that it is clear that there can be different bargaining representatives at different times during the bargaining process. The company’s submission that representatives are restricted to those who exist at the notification time is misconceived.
[45] The CFMEU submits that the scheme of this part of the Act is consistent with the proposition that employees determine who will act for them in the bargaining process. Reference is made to section 3(e). It is submitted that sections 176 to 178A are facilitative provisions which should be construed in a manner which supports that proposition.
[46] The union submits that the words of the Act tend against the company’s contention. Section 176(1)(b) refers to employees covered by the agreement which would include persons engaged after the notification time. It submits that there is no express limitation on the timing of the appointment or revocation of appointment of a bargaining representative. Reference is made to paragraph 716 of the Explanatory Memorandum.
[47] The CFMEU submits that the company’s contention would have the effect of also limiting existing employees in their choice of representative. That cannot be the legislative intent. It notes that bargaining can occur over an extended period of time. It submitts that, if the company’s position was accepted, employers may seek an advantage in bargaining by engaging a large number of new, unrepresented employees after notification time.
[48] The CFMEU disputes the company’s contention as to the policy reason for restricting additional bargaining representatives at a later point in the process. It submits that any disruptive effect on negotiations could be addressed by a bargaining order from FWA.
[49] The union submits that there is nothing in the Act or the Explanatory Memorandum that precludes the CFMEU being covered by the Agreement. Reference is made to paragraph 753 of the Explanatory Memorandum.
[50] The CFMEU also disputes the company’s contention that the union is unable to be covered by the Agreement because it did not provide a declaration under section 185(2)(b). It submits that the section requires one bargaining representative to apply for approval. The obligation under the section relates to that bargaining representative. The fact that the company did not seek such a declaration from the CFMEU does not take away from the union’s entitlement to be covered.
[51] The union submits that Mr Kelly’s affidavit supports a conclusion that the CFMEU has complied with section 183(2). Mr Powell’s affidavit and attachments do not conclusively show that the company did not receive the fax from the union.
[52] The union refers to the two fax reports attached to Mr Powell’s affidavit. It notes that a fax of one page from an unidentified number was received by the company. It submits that there is nothing to indicate that this was not the document sent by Mr Kelly. It further submits that it is not surprising that the other fax report does not show the CFMEU’s number as Mr Kelly’s evidence is that he was unable to send the fax to that machine.
[53] The CFMEU rejects the company’s contention that it has been tardy and submits that all reasonable steps were taken. The union submits that FWA should be satisfied that it has met the requirements of section 183(2).
CONCLUSIONS
[54] The first issue to consider is whether the CFMEU is prevented from being covered by the Agreement because it was not a bargaining representative, either nominated or by default, at the “notification time”.
[55] Section 173(1) imposes an obligation on an employer that will be covered by a proposed enterprise agreement. It requires such an employer to 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.”
[56] It is clear from the wording of the subsection that, in order to have a right to receive the notice, the employee must be one who will not only be covered by the agreement but also is employed at the notification time. Therefore, Mr Keable for example, could not claim that John Holland Rail had not fulfilled its obligations under section 173 because it did not give him a notice of representational rights.
[57] Section 176 sets out the persons who are bargaining representatives for a proposed agreement and the manner in which they may be given such a status. It is of note that each of the provisions which relate to employees, namely subsections (1)(b) and (c) and (4), refer only to employees who will be covered by the agreement. There is no additional requirement, as with section 173, that these persons need to have been employees at the notification time in order to be represented during bargaining either by an appointed or default representative.
[58] The Act places no express restriction upon when a bargaining representative may be appointed or when such an appointment may be revoked. That this was the specific intention of the legislature is supported by paragraphs 716 and 720 of the Explanatory Memorandum, both of which state that there is no restriction on when a person may appoint a bargaining representative.
[59] In some cases negotiations for an agreement may take many months. During that period of time new employees who will be covered by such an agreement may commence. If Parliament had intended that these new employees had no right of representation then it could have expressly provided so. In the absence of any such provision the broad rights given to existing employees also apply to new employees.
[60] I reject the argument that the CFMEU has no standing because it was not a bargaining representative at the notification time.
[61] The next issue is whether the CFMEU is prevented from being covered by the Agreement because it has not lodged a Form F18. Section 185(2)(b) provides that an application for approval of an agreement must be accompanied by any declarations that are required by the “procedural rules”. Section 585 is in similar terms and relates to applications to FWA in general.
[62] Form F16 - Application for Approval of Enterprise Agreement, notes that such an application must be accompanied by declarations completed by the employer covered by the agreement and each employee organisation which was a bargaining representative and which support the application.
[63] In the case of the Agreement the applicant for approval is John Holland Rail. It would appear that any failing in respect of the provision of a declaration by the CFMEU, rests with the company not with the union. The situation may be different if, for example, the CFMEU had refused to provide such a declaration so as to frustrate the approval process.
[64] I reject the argument that the CFMEU is not entitled to give notice under section 183 because it did not provide a Form F18.
[65] The third issue to be considered is whether the CFMEU is prevented from being covered by the Agreement because of the operation of section 183. Subsection (1) provides that an employee organisation that was a bargaining representative for an agreement may give FWA a written notice that the organisation wants the agreement to cover it. Subsection (2) then provides:
“The notice must be given to FWA, and a copy given to each employer covered by the enterprise agreement, before FWA approves the agreement.”
[66] It is accepted that the CFMEU gave the notice to FWA before the Agreement was approved. The question is whether a copy was given to John Holland Rail. Before considering the evidence on this point I wish to deal with the issue of whether the legislation mandates that the copy of the notice must be given to the employer before approval.
[67] The position of the word “must” in the subsection could arguably permit an interpretation that, whilst it is mandatory that the notice be given to FWA before approval, it is not compulsory that it be provided to the employer in the same time frame. However, such an interpretation is not supported by the Explanatory Memorandum. Paragraph 754 reads:
“Subclause 183(2) provides that an employee organisation must give the notice that it wants to be covered by the agreement to FWA before FWA approves the agreement. A copy of the notice must be given to each employer covered by the agreement before FWA approves the agreement.” (emphasis added)
[68] It would appear to follow that the copy of the notice must be given to the relevant employer, or employers, before an agreement is approved.
[69] It should be noted that I have had regard to section 28A of the Acts Interpretation Act 1901, section 161 of the Evidence Act 1995 and Rule 9.2(c) of the Fair Work Australia Rules 2009 in relation to the issue. However, none were of assistance in the present matter.
[70] I accept Mr Kelly’s evidence. I accept that he attempted on two occasions to fax the notice to John Holland Rail. However, the legislation requires that the notice be given to the employer. The onus is on the CFMEU to establish that. On the face of the documentary evidence attached to Mr Powell’s affidavit and in the absence of any countering evidence from the union I cannot be satisfied that the notice was given. Even if the document received by the machine with the alternative fax number at 15.05 on 1 October 2009 was from the CFMEU it is of one page only. The notice is of two pages.
[71] I am not satisfied that the CFMEU has met the second mandatory requirement of section 183(2). Unfortunately I am unable to waive compliance with this requirement as I could if it were discretionary. Section 586 allows FWA to waive an irregularity in the form or manner in which an application is made. It also provides that FWA may allow a correction or amendment of any application or other document. However, it doesn’t permit FWA to waive compliance with what is, in effect, a mandatory service requirement of the Act itself.
[72] The CFMEU’s request to be covered by the Agreement is refused.
COMMISSIONER
Appearances:
P. Ludeke , solicitor on behalf of John Holland Rail Pty. Ltd.
L. Charlson from the Construction, Forestry, Mining and Energy Union.
R. Nanva from the Australian Rail, Tram and Bus Union
Hearing details:
Sydney.
October 13.
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