Metecno Pty Ltd T/A Bondor
[2012] FWA 6021
•18 JULY 2012
[2012] FWA 6021 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Metecno Pty Ltd T/A Bondor
(AG2012/5738)
COMMISSIONER GOOLEY | MELBOURNE, 18 JULY 2012 |
Metecno Pty Ltd, trading as Bondor, Sunshine Certified Agreement 2012.
[1] On 1 June 2012, Metecno Pty Ltd trading as Bondor (the Applicant) lodged an application for approval of the Metecno Pty Ltd, trading as Bondor, Sunshine Certified Agreement 2012 (the Agreement).
[2] In the employer declaration filed with the application, the Applicant stated that the last notice of representational rights was given to employees on 14 May 2012 and voting commenced on 25 May 2012.
[3] Section 181 of the Fair Work Act 2009 (the Act) provides as follows:
“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.”
[4] On 12 June 2012 I advised the Applicant that as the voting commenced earlier than permitted by section 181 of the Act, the Agreement could not be approved.
[5] I further asked the Applicant to provide the copy of the notice of representational rights provided to employees.
[6] On 22 June 2012 the Applicant provided a copy of the notice of representational rights to Fair Work Australia which was dated 7March 2012.
[7] On 25 June 2012 the Applicant provided a revised Statutory Declaration which advised the notice of representational rights was given to employees on 7 March 2012.
[8] On 25 June 2012 I wrote to the Applicant advising that the notice of employee
representational rights did not comply with the Act in that it did not advise persons who were members of a union of their right to be represented by their union.
[9] The notice of employee representational rights issued to employees was in the following terms:
“Bondor gives notice that it is bargaining in relation to an enterprise agreement (Sunshine Enterprise Agreement) which is proposed to cover employees that work in the Sunshine Bondor factory.
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.
If you are an employee who is covered by the agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.
You can do this by notifying the person that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.”
[10] The notice omitted the following:
“If you are an employee who would be covered by the proposed agreement:
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.” 1
[11] The application was listed for hearing on 29 June 2012.
The Applicant’s submissions
[12] At the hearing Mr Paul Caraglanis the State Manager appeared for the Applicant along with Mr Minh Tran and Mr Ritchie Warhurst who were employee bargaining representatives.
[13] Mr Caraglanis acknowledged the omission from the notice of employee representational rights. Mr Caraglanis submitted that as he knew there were no union members he did not include the paragraph regarding the right of union members to be represented by their union nor the low paid authorisation paragraph.
[14] Mr Caraglanis stated that he had an open line of communication with his employees and the employees would have advised him whether they are in the union. He was supported in this view by Mr Tran and Mr Warhurst.
[15] Section 174 of the Act provides as follows:
“174 Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low-paid authorisation is in operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).
Regulations may prescribe additional content and form requirements etc.
(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.”
[16] Section 186 of the Act relevantly provides as follows:
“186 When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.”
[17] Section 188 of the Act provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[18] In Galintel Rollings Mill Pty Ltd t/a the Graham Group (Galintel) the Full Bench determined that the requirement in section 181(2) “cannot be satisfied if a notice referred to in s173 is not given.” 2 Further the Full Bench held that “if an employer fails to advise employees of their rights in the manner specified the requirement is not satisfied.”3 In that case the notice under consideration was consistent with the requirements of the Act but added a nomination form to the end of the notice. While the Full Bench considered it unwise for an employer to modify or add terms to the notice of representational rights, it held that unless the alteration altered the nature of the notice it would not invalidate the notice.
[19] The omission in the notice provided to employees in this matter is significantly different from that considered by the Full Bench in Galintel and Inghams 4. In Inghams the notice omitted the provisions relating to employees covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement.
[20] The Full Bench held that “the failure to include the qualification to that right set out in item 2(3) of Schedule 13 of the TPCA Act and the additional paragraph in Schedule 2.1 of the FW Regulations merely means the employee is not notified through the notice that their right to appoint a bargaining representative or for a person to become their bargaining representative is qualified.” 5
[21] The omission in the notice of representational rights of the provision that advises employees who are members of a union that their union is their default bargaining representative is by contrast a significant omission. I am not able to accept the hearsay evidence of the Applicant that there were no members of a union at the workplace. In any event upon receiving the correct notice of representational rights a non union member may have chosen to join a union to have the union represent him or her in the bargaining. Because this information was omitted from the notice, the employee was denied this choice.
[22] I consider that the omission invalidates the notice of employee representational rights.
[23] I therefore dismiss the application for approval of the Agreement.
COMMISSIONER
1 Notice of Representational Rights schedule 2.1 to the Fair Work Regulations 2009
2 [2011] FWAFB 6772 at [38]
3 Ibid at [40]
4 [2011] FWAFB 6106
5 Ibid at [51]
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