Maroondah City Council

[2012] FWA 7891

[2012] FWA 7891

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Maroondah City Council
(AG2012/707)

DEPUTY PRESIDENT SMITH BRISBANE, 12 SEPTEMBER 2012

Maroondah City Council Enterprise Agreement No 8, 2011.

Introduction

[1] The Maroondah City Council (Maroondah) seeks the approval of an agreement to be known as the Maroondah City Council Enterprise Agreement No 8, 2011 (the Agreement). When the application was lodged, the Australian Municipal, Administrative, Clerical and Services Union (ASU) sought to be heard on whether or not the Agreement should be approved.

[2] Both parties were represented by leave. The ASU was represented by Mr S. Moore of counsel and Maroondah was represented by Mr A. McNab of counsel.

[3] The ASU raised two impediments to the approval. They were: compliance with the mandatory pre-approval steps contained in s.180(2) and (5) of the Fair Work Act 2009 (the Act) and the assertion that the agreement did not pass “the better off overall test” (BOOT). The matter was adjourned into conference to see if an agreement could be reached. From that time, several discussions were held and correspondence was entered into regarding the BOOT, but agreement was not reached. Regrettably, I had apprehended that if agreement was reached in relation to the BOOT other matters may assume less significance. I was in error and when it was clear that the pre-approval matters would not be satisfied by any other agreement the matter was listed for further hearing.

[4] That took place on 3 September 2012 and the following ex-tempore decision was announced after hearing and considering all submissions:

“In this matter I am not satisfied that Council took all reasonable steps to ensure that employees either had a copy of the agreement and other materials or had access to the agreement. I am also not satisfied that Council took all reasonable steps to ensure that the terms were explained to relevant employees.

This is a fundamental matter which goes to the jurisdiction of the Tribunal to approve the agreement. I decline to approve the agreement and I will provide written reason shortly”.

[5] These are my reasons.

THE LEGISLATION

[6] Section 180 of the Act provides:

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.

THE FACTUAL POSITION

[7] The Form F17 provided by the Chief Executive Officer of Maroondah sets out the steps taken by Maroondah in compliance with s.180 (2)(a) of the Act. They were:

● Placing a link to the proposed agreement on the Intranet homepage.

● Sending an “all users” email to employees with council email accounts with a link to the recent edition of ‘That’s Maroondah” which provided a summary of the agreement and advised that the proposed agreement could be accessed electronically on the intranet.

● Providing a hard copy of ‘That’s Maroondah’ attached to the payslips which described how the agreement could be accessed on the intranet or that a hard copy could be viewed at each Multi-Staff workplace.

● Delivering 17 copies of an ‘EBA information pack’ to the Multi Staff Workplaces.

● Distributing posters to Multi-Staff workplaces.

[8] In relation to the operation of s.180(5) Maroondah referred to the abovementioned points.

THE EVIDENCE AND THE ARGUMENTS

[9] For Maroondah Mr S. Bishop (Industrial Relations and Employee Relations Advisor) and Mr C. Haskett (Program and Services Manager at the Croydon Leisure and Aquatics Centre) were called to give evidence.

[10] Mr Bishop dealt with the notification process stated in the Form F17. Mr Bishop also gave evidence in relation to a meeting held of function centre employees and the communication with employees at Karralyka. Mr Bishop’s evidence also went to the different increases under the Agreement. For example; the promotion of the Agreement by Maroondah was that there would be annual increases of 3.3%, 3.2% and 3.1% whereas casual employees at Karralyka would in fact get no increase in year one and then a 1.6% in year two and then a 1.55% increase in year three. In addition, Mr Bishop agreed that there would be no increase for the majority of leisure facility employees. In this connection Mr Bishop agreed that if the headline rates were looked at in isolation without going into the agreement then those employees referred to would not get a true picture of the proposed agreement.

[11] For the ASU the following witnesses were called:

● Ms I. Fell—who described herself as an educator working from home looking after children,

● Ms K. Lavrans—who was a waitress in the function centre known as Karralyka,

● Ms D. Parks—who was a customer service and group fitness instructor,

● Ms M. Wainwight—an organiser with the ASU, and

● Ms M. Jackson—Lead Organiser with the ASU.

[12] The evidence of the those person called by the ASU went to the availability of internet access; the number of employees who did not receive the headline rate and the ready access to that information; the number of employees who did not work at the time when pay slips contained the newsletter and the number of people who do not attend council workplaces to perform their work. Some further material was put in relation to low literacy levels upon which I have placed no reliance.

[13] The ASU argues that the power of Tribunal to approve an agreement is very confined in that if certain legislative conditions are not met, then an agreement cannot be approved. It argues that s.180(2) relevantly states that the employer must take “all reasonable steps to ensure” that either a copy of the agreement is available or there is access to the agreement. It is submitted that the words “all” and “ensure” cast a strong responsibility on the employer. This is contradistinction to the Full Bench decision in NTEU v University of New South Wales [[2011] FWAFB 5163]. In that case, it was submitted the Tribunal was dealing with different statutory language. Section 173 of the Act provides that the employer “must take all reasonable steps to give” and this, it is submitted is not as strong as the word “ensure”.

[14] To the extent that University of New South Wales Case is relied upon to provide support for the actions of Maroondah then, in the submission of the ASU, the proper statutory construction of the language used in s.180(2) creates a stronger responsibility upon an employer to ensure that employees either have a copy of the agreement and other material or have access to the agreement.

[15] In relation to s.180 (5) of the Act, it was argued by the ASU that a similar obligation existed and that the employer must “take all reasonable steps to ensure” that the terms are explained and that the explanation is provided in an appropriate manner. Reliance was placed upon the ordinary and natural meaning of the word “ensure”. It was argued that the pre-approval requirements are not only a procedural right but a substantive right so that employees clearly understand the terms of the agreement thus enabling them to genuinely agree. It is argued that without the pre-approval steps then there could be no genuine agreement of the kind referred to in s.186(2) of the Act.

[16] Maroondah did not agree with the emphasis placed upon the statutory injunction to take all reason steps as argued by the ASU. It was submitted that a literal application in the way advocated by the ASU would be to pursue perfection which could not be practically achieved in a workforce of over 900 employees. It was argued that the information and material provided was clearly sufficient for employees to be aware of the terms of the proposed EBA. Maroondah submitted that there has been protected industrial action so it was clear that employees were well aware of the negotiations and the attitude of the ASU to the outcome which was now proposed by Maroondah.

[17] It was argued that the information contained on the intranet was easy to navigate and contained all the relevant information. It was argued that all that was required is that reasonable access be given to the proposed agreement.

CONCLUSION

[18] In the decision in relation to the Whitehorse City Council Agreement 2012 [2012 FWAA 7492] I stated:

I pause at this stage to note that the Act firstly requires that a copy of the Agreement be given to employees but then provides, as an alternative, that the relevant employees have access to the Agreement. The structure of this provision conveys a clear importance of the language that the employer must take ‘all reasonable steps’. The reasonableness must be related to providing access as an alternative to giving the employee a copy of the Agreement. If that was not the emphasis given by the Act, the legislature could have just provided for reasonable access. Although, the legislation does stop short of requiring an employer to be satisfied that all employees have a copy. 1

[19] In considering this matter I adopt this conclusion. I agree with the ASU that the Act provides not only a procedural but a substantive right to understand the proposed agreement upon which employee will be asked to vote. The duty is cast upon the employer to take all reasonable steps to ensure that the obligations under s.180(2) and (5) are carried out. This is a positive obligation on the employer.

[20] From the submissions and evidence it appears to me that Maroondah, whilst taking important steps to provide the information, adopted an approach that it was up to the employee to search out that information. The emphasis cannot shift, in my view, from the employer taking all reasonable steps to ensure, to the employer providing access which requires the responsibility being placed upon the employee to access a copy of the proposed agreement and/or understand the terms of the proposed agreement.

[21] The evidence persuaded me that Maroondah shifted that responsibility to the employee to take all reasonable steps to inform themselves. This is particularly so when consideration is given to the representations made about the level of wage increase and the path that needed to be taken to discover that a significant number of employees did not receive that increase.

[22] It was for these reasons that I formed the view that the pre-approval steps contained in s.180(2) and (5) had not been met.

[23] I add, lest it be said to the contrary, that I make no observation or finding about any matter relating to the BOOT or the evidence given in this regard.

Appearances:

A. McNab of counsel with J. Fitch on behalf of the Maroondah City Council.

S. Moore of counsel with H. Shing for the Australian Municipal, Administrative, Clerical and Services Union.

Hearing details:

2012.

Melbourne:

May, 21; and

September, 3.

 1   AE896528  PR528577 at paragraph 8

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