Latrobe Valley Machining Pty Ltd

[2013] FWC 1569

[2013] FWC 1569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Latrobe Valley Machining Pty Ltd
(AG2013/209)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 18 MARCH 2013

Latrobe Valley Machining Pty Ltd Enterprise Agreement 2013 .

[1] Latrobe Valley Machining Pty Ltd made an application on 31 January 2013 for approval of the Latrobe Valley Machining Pty Ltd Enterprise Agreement 2013 pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] Mr Ben Cruickshank, the owner and manager of Latrobe Valley Machining Pty Ltd filed a statutory declaration (Form F17) in support of the application. Question 2.6 of the Form F17 was not properly answered.

[3] On 27 February 2013 I sent the following email to Mr Cruickshank:

“Mr Ben Cruickshank

Owner/Manager

Latrobe Valley Machining P/L

93-95 Alexander Road

Morwell, Victoria, 3840

Dear Mr Cruickshank,

Matter AG2013/209 - Application for Approval of Latrobe Valley Machining P/L Enterprise Agreement 2013

In your sworn Form F17 question 2.6 has not been fully answered. Whilst your answer indicated that employees were told that a ballot would occur, you failed to identify when the employees were first told. I note that attached to the Application and Form F17 was a copy of a notice to employees dated 18 January 2013 from yourself and Mr Coulthard. Was this the notice referred to in your answer to question 2.6?

Your prompt response would be appreciated.

Commissioner John Ryan”

[4] By email Mr Cruickshank responded as follows:

“Subject: RE: AG2013/209 - Application for Approval of Latrobe Valley Machining P/L Enterprise Agreement 2013

John,

Sorry for the delay as I am on leave.

Yes, the employees were notified on the 18th of January, as per the notice.

Regards

Ben Cruickshank

Latrobe Valley Machining”

[5] Whilst Mr Cruickshank’s form of address to the Commission may imply that there is a previous relationship between Mr Cruickshank and myself such as to allow Mr Cruickshank to address me on a first name basis I make it very clear that I have never met Mr Cruickshank nor have I had any dealings with him nor have I permitted him to address the Commission in such an informal manner.

[6] Mr Cruickshank also declared in his Form F17 that the employees who were to be covered by the Agreement voted on the approval of the Agreement on the 18 January 2013.

[7] Therefore from the Form F17 and from the email reply from Mr Cruickshank it is clear that employees were told of the time, place and method of voting on the 18 January 2013 and that they were told that the vote would take place on the same day, namely 18 January 2013.

[8] Sections 180 and 181 of the Fair Work Act are relevant and are 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).

Terms of the agreement must be explained to employees etc.

(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; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(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.

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[9] The combined operation of s.180(1), (3) and (4) and s.181(1) and (2) is that an employer can only ask employees to approve a proposed enterprise agreement if both of the following conditions have been met:

1 - the request that employees approve the agreement must be made at least 21 days after the last Notice of Employee Representational Rights was issued to employees (s.181(1) and (2)), and:

2 - the time place and method of voting to approve the enterprise agreement must be notified to employees at least 7 days before the vote is to occur (s.180(3) and (4)).

[10] In the present matter the conduct of the employer creates the appearance that the employer has met the requirements of s.181. However an employer can only be in a position to comply with s.181 if the employer has already complied with s.180.

[11] In the present matter the conduct of the employer makes it clear that the employer has not met the requirements of s.180(1) because of the failure of the employer to comply with s.180(3). Asking employees on 18 January 2013 to vote on 18 January 2013 does not meet the requirement of s.180(3).

[12] The consequence of not complying with s.180(3) is that the employer could not request the employees to approve the Agreement.

[13] This in turn means that the Agreement has not been made under s.182(1) which provides that:

“182(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”

[14] The Form F17 identifies that of the 30 employees eligible to vote 27 voted and 20 of the 27 voted to approve the Agreement. Even though a majority of employees did vote on 18 January 2013 to approve the Agreement the Agreement has not been “made” under s.182(1) given that the employer was not permitted to request the employees to vote on the Agreement until the employer complied with s.180(3) of the Act.

[15] As the Agreement has not been made in accordance with the provisions of the Fair Work Act there is therefore no valid application before me and I dismiss the application.

COMMISSIONER

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