Mancala Pty Ltd

[2020] FWC 6940

[2020] FWC 6940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mancala Pty Ltd
(AG2020/3120)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 DECEMBER 2020

Application for approval of the Mancala Enterprise Agreement 2020 – Agreement replacing Mancala Group of Companies Enterprise Agreement 2014 – Commission not satisfied the Agreement was genuinely agreed – Application for approval dismissed.

[1] An application has been made for the approval of an enterprise agreement known as the Mancala Enterprise Agreement 2020. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mancala Pty Ltd. For the reasons I outline below, I have determined that the application should be dismissed.

[2] The Mancala Enterprise Agreement 2020 was intended to be a single enterprise agreement to cover mining operational employees of Mancala Pty Ltd. I will hereafter refer to the Mancala Enterprise Agreement 2020 as the “proposed Agreement” and the employer as “Mancala”.

[3] In the Form F17-Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17), Question 18 requires an Applicant for the approval of an enterprise agreement to lodge a copy of the Notice of Employee Representational Rights (NERR). This was not done and had to be requested. The NERR provided in response describes the scope of the employees proposed to be covered by the Agreement as those “that work in frontline operation roles” whereas the ultimate scope described in the Agreement are the “Employees…who are employed to work in classifications contained in clause 8 of this Agreement”, with clause 8 outlining classifications for Mining Employees. Mancala should ensure the scope of employees in any future NERR, bargaining process, vote and Agreement descriptors align.

[4] The Form F17 at Question 22 outlined that a total of nine EBA discussion sessions were conducted between 25 September 2020 and 1 October 2020. Attendance sheets were said to have been used to record names of those at each session. Submitted with the application were attendance sheets that suggest that 21 of the 41 employees, said to have been covered by the proposed Agreement at the time of its vote, attended these sessions. The Form F17 at Question 22 further records that employees that were “in between” projects were called individually to discuss the proposed Agreement. Follow up sessions are declared to have been conducted on 30 September 2020 and 1 October 2020 “for sites that had additional questions or requests that were unable to be fully answered or clarified during the initial discussion session.”

[5] Question 26 of the Form F17 records that 33 of the 41 employees said to have been covered by the proposed Agreement at the time of its vote cast a valid vote and of those, 30 voted to approve the proposed Agreement. However, Voting Forms submitted with the application suggest that 27 employees voted and that only 23 of these voted to approve the proposed Agreement. These Voting Forms required employees to print and sign their name, nominate the date upon which they voted and whether they approved or did not approve the proposed Agreement. The Voting Forms indicated the voting closed on 5 October 2020, whereas the Form F17 included at Question 25.2 a declaration that the voting process concluded on 9 October 2020.

[6] Clause 6 of the proposed Agreement deals with Hours of Work and states “Hours of work will be averaged over the relevant roster cycle, with any time worked in excess of an average of 38 hours per week being paid as overtime. (Refer to Appendix A to see examples of hours of work averaged for various roster cycles)…” However, there was no Appendix A attached to the proposed Agreement. I queried why this was the case with Mancala during a Mention conducted on 10 November 2020 and was subsequently informed that the Appendix A had been removed from the proposed Agreement but the reference to it was unintentionally left in. I was also advised that details regarding rosters are included in employment contracts sent to employees, if employed at Mancala’s Bendigo workshop or when deployed on a new project.

[7] Mancala also advised me subsequent to the Mention that it had reviewed the most recent pay guide for the Mining Industry Award 2020 (the Award) and to ensure all current and future employees are better off overall, had decided to increase the base rates of pay in the proposed Agreement. I was also advised that the treatment of casual loading would also be changed, in response to the recent decision of the Full Bench of the Commission dealing with overtime for casual employees 1 and that there would also be adjustments made to the conditions for part time employees, apprentices and employees engaged on night shifts in response to matters I had raised at the Mention.

[8] In relation to “All Up Hourly Rates” and “Annualised Salaries”, more information was provided following the Mention. In broad terms, whereas the proposed Agreement did not include proposed rates of pay, Mancala stated that the “All Up Hourly Rates” are “usually requested by employees and are much higher that the Mancala Enterprise Agreement rates.” It was stated that comparisons are provided to employees before pay arrangements are changed to ensure employees were not being disadvantaged. As for “Annualised Salaries”, Mancala advised these are only offered to more senior personnel.

[9] I observe that if Annualised Salaries became payable under the proposed Agreement, they would be reviewed on an annual basis to ensure the compensation is “adequate” having regard to the proposed Agreement provision. This is to be contrasted with the obligation imposed by clause 17.2(b) of the Award for an employer to calculate each twelve months the amount of remuneration that would have been payable to the employee under the provisions of the Award over the relevant period and compare it to the amount of the annualised wage actually paid to the employee and, if the latter amount is less, make payment of the shortfall within 14 days.

[10] Finally, I observe that it is unclear whether the Abandonment of Employment clause at Clause 27.4 of the Agreement provides for employees to receive notice of termination as required by s.117 of the Act.

Consideration

[11] On the basis of the material contained in the application, the accompanying Form F17 statutory declaration and the information provided following the Mention, I am not satisfied that the requirements of ss.186(2)(a) and 188 of the Act have been met. I am not satisfied the proposed Agreement has been genuinely agreed by the employees for the following reasons:

•  With 41 employees declared to have been covered by the proposed Agreement at the time of the vote, I have been provided with attendance sheets for discussion sessions that suggest only 21 employees participated and little detail regarding the balance save for the declaration that employees that were “in between” projects were called individually to discuss the proposed Agreement. I am therefore not satisfied on the material before me that Mancala took all reasonable steps to ensure the terms of the proposed Agreement and the effect of those terms were explained to its employees.

•  While Mancala has indicated it now intends to enhance a range of conditions in the proposed Agreement, when these include not insignificant increases to base rates of pay for full time employees, completely different arrangements for apprentices and changes of note for casual employees and part time employees, one begins to wonder about the nature of the explanation given regarding the comparison between the proposed Agreement and the Award in the first place.

•  While “All Up Hourly Rates” and “Annualised Salaries” are only said to come into effect by agreement and only offered to some employees, there was a paucity of practical detail in the proposed Agreement outlining how these conditions were to work, making it difficult to imagine how an employee would be able to fully appreciate the way in which they would operate when they were voting for or against the proposed Agreement.

•  I have some reservations about the voting process for the proposed Agreement because it included a ballot paper that identified who voted and the manner in which he or she voted and a voting period that differs to that which was described in the Form F17.

[12] In summary, I am not satisfied the proposed Agreement has been genuinely agreed by the employees because of the nature of the changes Mancala would now propose to make to the proposed Agreement, my concerns about whether all reasonable steps were taken to ensure the terms of the proposed Agreement and the effect of those terms were explained to employees, the somewhat random way “All Up Hourly Rates” and “Annualised Salaries” are dealt with in the text of the proposed Agreement and my reservations about the voting process.

[13] These matters can nonetheless be addressed through an improved pre-approval process. Along with the observations I made in [3] and [10] above, the changes Mancala has suggested it would make could be inserted into the text of a new draft Agreement, the content can be better outlined and explained and the voting process appropriately adjusted.

[14] As I am not however persuaded the statutory requirements for the approval of the proposed Agreement have been met in this matter currently before me, the application for the approval of the enterprise agreement known as the Mancala Enterprise Agreement 2020 is dismissed.

DEPUTY PRESIDENT

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 1   [2020] FWCFB 4350 at [225].