MacDonnell Regional Council

[2017] FWCA 5988

[2017] FWCA 5988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MacDonnell Regional Council
(AG2017/1785)

MACDONNELL REGIONAL COUNCIL ENTERPRISE AGREEMENT 2017

Northern Territory
COMMISSIONER SIMPSON	BRISBANE, 23 NOVEMBER 2017

Application for approval of the MacDonnell Regional Council Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the MacDonnell Regional Council Enterprise Agreement 2017 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the MacDonnell Regional Council (the Council). The agreement is a single enterprise agreement.

[2] The application identified Union Bargaining Representatives as being United Voice (UV) and the Construction Forestry Mining and Energy Union (CFMEU). The application also identified 11 instruments of appointment signed by an employee appointing a bargaining representative and the names of bargaining representatives were provided with the application.

[3] The application was accompanied by a Form F17 Employer’s statutory declaration signed by Mr Jeff Macleod, the Chief Executive Officer of the Council. The application was also accompanied by a Form F18A statutory declaration of Carla Romberg, an employee representative advising that she agreed with the statutory declaration of Mr Macleod.

[4] Mr Andrew Sutherland, Divisional Branch Assistant Secretary of the CFMEU, a bargaining representative for the Agreement, filed a Form F18 statutory declaration supporting the approval of the Agreement and giving notice under s.183 of the Act that it wants the Agreement to cover it.

[5] Ms Dianne Yali, Industrial Officer for UV, being a bargaining representative for the Agreement, filed a Form F18 statutory declaration opposing the approval of the Agreement. UV also gave notice that it wanted to be covered by the Agreement. The reasons set out in the Form F18 for objecting to the Agreement were as follows;

•  The Employer appears to have communicated with employees mostly via email.

•  Almost 79% of the workforce is indigenous who work in remote communities and do not have access to emails. Where they do have access to emails, the service is intermittent.

•  We believe the Enterprise Agreement was not properly explained to employees, hence the very low return in the ballot.

•  United Voice does not believe many employees attended the information sessions.

•  United Voice was not provided any information about the ballot process.

[6] On 5 July 2017 an Agreement Assessor from the Member Support Research Team wrote to representatives of the Council, also sending the correspondence to other bargaining representatives raising preliminary concerns. The Applicant responded to the concerns raised in the Fair Work Commission (the Commission) correspondence on 18 July. A summary of the issues raised and responses is set out below.

Form 18A

[7] The first issue concerned that the Form FA18 of Ms Carla Romberg did not appear to be signed by an authorised witness. This was subsequently addressed by the filing of an amended form.

Company Policies

[8] The second issue concerned that further information was requested as to whether employees were provided access to and/or copies of the policies referenced throughout the Agreement prior to the start of the access period of the vote. The Applicant subsequently advised that all policies are accessible through the internal intranet (Sharepoint), and were available during the access period. The Applicant submitted that all Council facilities and offices in the 13 communities and in Alice Springs have access to the intranet and staff members are provided with access. It was put that the enterprise agreement access period poster also reminded staff where to find operational policies. I am satisfied Council’s response resolves this issue.

Voting Details

[9] The third issue was a request from the Commission for further information concerning the voting process. It was put to the Applicant that from the answer provided in Question 2.5 of the Form F17 it appears that all employees in the Alice Springs office were not provided with details of the vote until 28 April 2017, which is only two days before voting commenced. Further it was put that it was unclear when all employees were informed of the details of the vote for each of the 13 communities, and whether this was prior to the start of the access period for the vote. The Applicant was directed to s.180(3) of the Act which provides that the employer must take all reasonable steps to notify the employees of the time, place and method of the vote by the start of the access period. It was put to the Applicant that from the F17 it appeared that there had been less than the seven days between all employees being informed of the vote details and the commencement of voting.

[10] The Applicant responded that on 17 and 27 March 2017 there were information sessions held in Alice Springs. Further between 20 March and 11 April there were information sessions held in each of the thirteen communities. The Applicant said that the information sessions were to provide information to employees about the voting method and period of voting. The Applicant said the voting period in Alice Springs was the full period between 2 May and 11 May and on 12 April all managers, coordinators and administration staff were sent the final voting schedule, which included the date and time of voting in every community. The email and the attachment were printed off in each community by the Council Service Coordinator to be displayed on the staff notice boards, including the Alice Springs office.

[11] The Applicant said that a reminder of the voting start date was sent to all staff as part of the EA access period poster, and another reminder was sent on 27 April to inform staff of the end of the access period and start of the voting period. The Applicant said those emails were printed off in each community by the Council Service Coordinator to be displayed on staff notice boards, including the Alice Springs office.

[12] The Applicant provided copies of the posters regarding the voting time, date and method of voting. The Applicant said the location poster and the information poster were displayed side by side on each community staff notice board, including Alice Springs. I am satisfied that the Applicant took reasonable steps to notify all employees of the time, place and method of voting.

Vote Participation

[13] Correspondence from the Commission also noted that out of 465 employees covered by the Agreement (excluding the CEO and Directors) only 284 voted and of those 173 voted in favour of approving the agreement. The correspondence requested further information in light of the concerns raised by UV in their F18 statutory declaration.

[14] The Applicant explained that in its 2016 enterprise agreement voter participation was at 68.8% and this year it was 61.1%. The Applicant said that during the voting period there might have been cultural reasons for staff to be away from their home communities and they were provided with the opportunity to vote in different communities or the Alice Springs Office. It was said a number of staff were attending training and they were provided an opportunity to vote during their lunch break at the training facilities by way of ballot paper and ballot box. The Applicant said by way of comparison the turnout for the Northern Territory Legislative Assembly elections in 2016 in the Council area for the electorate of Sturt was 55.4% and for the electorate of Namatjira was 58.3%. I am satisfied that employees were given an opportunity to participate in the ballot.

United Voice Concerns

[15] In response to the matters raised in the Form F18 filed by UV, the Applicant said that 53% of employees attended the information sessions and Coordinators and Team Leaders communicated relevant information to their employees. The Applicant said the information sessions were done during work hours and all attendees were paid for their time to be present. The Applicant said it had done multiple presentations and where needed it has attended the individual facilities to accommodate service delivery. The Applicant provided a summary attendance of enterprise agreement information sessions.

[16] The Applicant said that a small number of employees were on leave during the information sessions and they were informed on their return. The Applicant said any questions that followed after information sessions were answered after the presentation by a HR representative and other questions were answered through Team Leaders, Coordinators or HR personnel.

[17] The Applicant said that at the time of the face to face presentations, multiple hard copies of the proposed EA and a simplified fact sheet were left behind for employees who could not attend so they could have the opportunity to read at their own leisure and raise questions where necessary.

[18] The Applicant said that it was concerned in relation to what it called a no campaign that it said UV had started during the period of information sessions, and as such arrangements were made for the provision of more information to correct what the CEO Mr Macleod said he believed were misconceptions.

[19] I am satisfied that the information provided to the Commission by the Applicant addresses the concerns raised by UV, and that the Agreement was genuinely agreed.

Time Between notification and the last Notice of Employee Representational Rights

[20] The Applicant was asked to respond to a query concerning the dates it provided in the Form F17 concerning the notice as required in s.173 of the Act and whether the date of the notice was later than 14 days after the notification time. The Applicant said that it expected all communities to receive the notice by 11 January 2017 and counted the first full day the notice would be received as 11 January. I am satisfied treating 10 January as the date of transmission of the notice, and treating 11 January as the date of notification is appropriate and meets the 14 day requirement.

The Commission Hearing

[21] On 8 September 2017 I listed the matter for hearing to give the parties an opportunity to address the matters in contention and to raise concerns I held regarding the application of the Better Off Overall Test (BOOT) and inconsistency with the National Employment Standards. At the conclusion of the hearing the Applicant undertook to consider the further issues I raised.

[22] On 19 September the Applicant sent correspondence to my chambers proposing seven undertakings in regard to clauses 11.3(e), 11.6(b), 19.1(g), 19.6(a), 19.6(k), 19.13(e) and 19.14(e) to address the issues I raised. On 16 October UV sent correspondence to my chambers indicating that it accepted the proposed undertakings concerning clauses 11.3(e), 11.6(b), 19.6(k).

[23] Remaining issues from UV were as follows;

(i) The proposed wording in clause 19.1(g) is too restrictive and does not comply with s.93(3) of the Act.

(ii) The proposed wording in clause 19.6(a) is inconsistent with s.70(b) and 72 of the Act.

(iii) The proposed wording in clause 19.13(e) is inconsistent with s.116 of the Act which states “...the employer must pay the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part day”.

(iv) The proposed wording in clause 19.14(e) is inconsistent with s.116 of the Act which states “..the employer must pay the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part day”.

(v) The BOOT may not be satisfied in relation to the OP 1 level.

(vi) UV reiterated its concern that s.188 of the Act is satisfied because the enterprise agreement was not properly communicated to employees given that a large majority of employees are indigenous and in remote communities, and most communication was by email.

Hearing 14 November 2017

[24] On 14 November 2017 I listed the matter for hearing to give the parties an opportunity to address the remaining issues from UV.

[25] In the course of that Hearing I expressed views in relation outstanding matters concerning inconsistency with the NES. The Applicant agreed to make a further modification to the previously offered undertaking concerning parental leave to address a matter raised by UV. I understood UV to indicate remaining issues concerning the NES were addressed in the course of the Hearing on the basis of the proposed undertakings offered.

[26] I raised a further BOOT matter in regard to clarification concerning weekend rates for casual employees. The Applicant agreed to further modify its proposed undertaking concerning penalty and weekend payments to casual employees as described in clauses 11.3(c), (e) and 14.4. I directed the Applicant to provide to my chambers the revised proposed undertakings which it did. I provided a further opportunity for all bargaining representatives to express a view about the proposed undertakings by responding to my chambers. No further responses to this invitation were received in chambers.

[27] Whilst the UV continued to press its concern that the Agreement was not genuinely agreed it did not wish to rely on any further material in that regard. On the basis of the views already expressed above I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[28] Pursuant to s.190 of the Act, I accept the Company’s undertakings. A copy of the undertakings is attached to the Agreement and forms part of the Agreement.

[29] In accordance with s.201(2) of the Act, I note that the Agreement covers the CFMEU and UV.

[30] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

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