McKechnie Iron Foundry Pty Ltd
[2010] FWA 3171
•19 APRIL 2010
[2010] FWA 3171 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/6523)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 19 APRIL 2010 |
McKechnie Iron Foundry Pty Ltd Single Enterprise Agreement 2010.
[1] On 5 March 2010 an application for approval of the McKechnie Iron Foundry Pty Ltd Single Enterprise Agreement 2010 was lodged pursuant to section 185 of the Fair Work Act 2009 (the Act). The application was referred to me for consideration.
[2] The Australian Workers’ Union South Australian Branch (AWU) also lodged a Form F22, in which it gave notice that it wished to be an organisation covered by the agreement.
[3] On 11 March 2010 I issued preliminary advice in which I sought clarification of the dates upon which employees were given advice of the voting arrangements and voting methodology. McKechnie Iron Foundry Pty Ltd (McKechnie) and the AWU were invited to provide this clarification within 14 days.
[4] The McKechnie position was set out in correspondence dated 22 March 2010. In this advice McKechnie indicated that certain of the information in the initial employer's declaration was erroneous and that the relevant sequence of events was as set out below:
“…
• 18/2/2010 – Discussion with the Union and Employee Representatives confirmed formal meetings for discussion and preliminary voting on our Agreement to be held on 19/2/2010.
• 19/2/10 12.00 mid day Consultative committee to present the Final draft of the Agreement Document.
• 19/2/2010 1.00 – 1.30pm – Shop meeting achieved notional agreement to accept the offer and document and proceed to the final vote.
• Agreement to proceed was achieved in a full shop vote conducted at shift change on paid time. Joe Kane and the two Shop Stewards came to my office after the meeting where it was agreed that a vote by secret ballot would take place in the lunchroom 7 clear days from the 19th February 2010, both meetings being held at 1.00pm on successive Fridays.
• It was left to the Shop Stewards to notify employees, in all sections, of the meeting details relating to time, place and method of voting. I have confirmed with them today this took place.
• The practice during our negotiations was for minutes of Consultative Committee meetings to be displayed in the lunchroom. The minutes of the 19th February 2010 confirm a final vote would take place on the 26/2/2010 at 1.00pm. I personally printed and displayed two hard copies of the National Employment Standards along with online access details.
• Re 2.2(b) Voting for the Agreement commenced on Friday 26/2/10 at 1.00pm.
• Re 2.2(c) The voting process by which employees approved the Agreement concluded Friday 26/2/10 at 1.15pm.” (sic)
[5] As I remained concerned over the extent to which the mandatory requirements of section 180 of the Act had been met, the application was subsequently listed for a hearing on 4 April 2010. The parties were advised that:
“This hearing will provide an opportunity for clarification of the extent to which section 180(3) has been met. A copy of this section is attached. The issue for consideration goes to the extent to which advice of the vote and vote methodology was provided by the start of the access period.”
[6] At the hearing on 12 April 2010 Mr Nixon, the General Manager of McKechnie appeared and Mr Kane represented the AWU. The parties undertook to further research the date upon which the employees were advised of the date of and the voting arrangements, and had access to the agreement in its final form.
[7] On 13 April 2010 Mr Kane provided the following advice:
“Further to the hearing yesterday 12 April 2010 re: the above application, I had a meeting today with Mr Nixon and the AWU delegate in relation to your request for more information as to when the employees were informed of the voting process.
The parties can not confirm that all employees were informed on the 18th February 2010 that the final vote would take place on Friday 26th February 2010.
At the meeting at 1pm on Friday 19th February 2010 all employees were informed that the final vote by way of ballot would take place from 1pm 7 days later on 26th February 2010.
The Australian Workers Union would submit that this time frame as submitted to Fair Work Australia at hearing on 12th April 2010 by Mr Nixon is the access period.
It is clearly the 7 day period ending immediately before the start of the voting process.” (sic)
[8] The process whereby employees were advised of the vote and the voting methodology and had access to the agreement in its final form is the only matter of concern with respect to the application for approval.
[9] Section 180 of the Act states:
“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.”
[10] The requirements of this section are mandatory in that the section represents essential requirements for approval and there is no license or jurisdiction extended to Fair Work Australia to approve an agreement that has been made without compliance with these requirements.
[11] Subsection 180(4) requires that the access period be counted in days before the start of the voting period.
[12] The approach to the counting of days for purposes such as this was dealt with in detail by a Full Bench of the Australian Industrial Relations Commission in Whites Discounts Pty Ltd trading as Everybody's IGA Everyday and Broken Hill Foodland 1. In this matter the Full Bench dealt with section 170LK of the former Workplace Relations Act 1996 which was then expressed in the following terms:
“170LK Agreement with employees
…
(2) The employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days' notice, in writing, of intention to make the agreement, and the agreement must not be made before those 14 days have passed.”
[13] The Full Bench concluded:
“[15] Section 36(1) of the Acts Interpretation Act 1901 deals with the manner in which time is to be reckoned in construing statutes. It reads:
"(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event."
[16] In our opinion s.36(1) is conclusive. The prima facie rule is that time is to be reckoned exclusive of the day of the relevant event. Applying that approach to the construction of s.170LK(2), time is to be reckoned exclusive of the day on which notice is given of intention to make an agreement. In this case that day was 14 January 2003. The vote which constituted the employee's acceptance of the agreement proposed by the employer took place on 28 January 2003. On that date only 13 days had passed. Although the prima facie rule may be displaced if a contrary intention appears from the statute, there is no indication in the Act, express or implied, that the rule should not apply to the construction of s.170LK(2).”
[14] I consider that I am obliged to replicate that same method of counting days for the purposes of section 180(4), albeit in reverse, because of the structure of that provision.
[15] The vote for the agreement occurred on 26 February 2010. The seven-day period ending immediately before the start of the voting process ended on 18 February 2010.
[16] It follows that the provision of information to employees about the vote, and the voting methodology, together with the provision of the agreement itself was one day after that date and therefore not consistent with the provisions of the Act.
[17] This therefore precludes any capacity to approve the agreement and I must decline to do so.
[18] A brief final comment is appropriate. This decision is reached with some reluctance as I am in absolutely no doubt that the parties conducted themselves in a fashion consistent with the spirit of the Act. My decision simply follows from the methodology for the counting of days which I am required to follow. It does not reflect in any way on the agreement that has been reached and does not preclude the parties from repeating the process and making a new application for approval in the same terms.
SENIOR DEPUTY PRESIDENT
Appearances:
A Nixon for McKechnie Iron Foundry Pty Ltd.
J Kane for the Australian Workers’ Union (South Australian Branch).
Hearing details:
2010.
Adelaide:
April 12.
1 PR937496
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