Morris Corporation (Aust) Pty Ltd
[2014] FWC 7231
•13 OCTOBER 2014
| [2014] FWC 7231 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement
Morris Corporation (Aust) Pty Ltd
(AG2014/1365)
Hospitality industry | |
DEPUTY PRESIDENT SAMS | SYDNEY, 13 OCTOBER 2014 |
Application by employee organisation to be covered by an enterprise agreement - compliance with s 183 of the Fair Work Act 2009 - procedural unfairness - whether earlier decision ‘interim’ and proceedings not concluded - compliance with s 183 mandatory - first decision approved the Agreement - decision not ‘interim’ - no issue of procedural unfairness - application by employee organisation to be covered by Agreement refused Application for approval of the Morris Corporation (Aust) Pty Ltd Enterprise Agreement 2014.
[1] On 10 July 2014, the Fair Work Commission (the ‘Commission’) as presently constituted, published a decision - Morris Corporation (Aust) Pty Ltd [2014] FWCA 4426) - granting the approval of the Morris Corporation (Aust) Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’), pursuant to the relevant provisions of the Fair Work Act 2009 (the ‘Act’) (Chapter 2, Part 2-4).
[2] During the hearing of the approval application on 1 July 2014, Mr Simon Ong appeared for United Voice (‘UV’) and Mr D Liston for the Australian Workers’ Union (the ‘AWU’) in their capacity as Employee Bargaining Representatives for the Agreement. The applicant, Morris Corporation (Aust) Pty Ltd, through its legal representative, Mr J Hadley, opposed both Unions being covered by the Agreement. He noted that while UV had filed a Form F18 prior to the hearing, the AWU had not done so. In my decision, ‘I determined that the objection to coverage should be decided separately to the approval process for the Agreement.’ In adopting this course, I relied on a decision of Cambridge C in DHL Supply Chain (Australia) Pty. Limited Enterprise Agreement - New South Wales 2011 [2011] FWAA 4557 (‘DHL Supply Chain’).
[3] The parties agreed to the filing and service of submissions as to the coverage objection and agreed that the matter could be decided by the Commission ‘on the papers’. Final submissions were filed on 12 August 2014.
[4] At this juncture, I note that in its final reply submissions, the applicant had not pressed its objection to UV being covered by the Agreement. Accordingly, pursuant to s 201(2) of the Act, I amend my decision in Morris Corporation (Aust) Pty Ltd [2014] FWCA 4426 and note that United Voice shall be covered by the Agreement. This leaves only the question of whether the AWU should be covered by the Agreement. I turn now to the submissions of the applicant and the AWU on the question.
SUBMISSIONS
For the applicant
[5] Dibbs Barker Solicitors submitted that the AWU failed to comply with the mandatory requirements of s 183(2) of the Act prior to the approval of the Agreement. As a consequence, an employee organisation cannot be covered by an enterprise agreement unless the Commission has noted in its approval decision that the Agreement covers the organisation (s 201(2)).
[6] The applicant stated that there was no dispute that:
(a) two employees had appointed the AWU as their bargaining representative;
(b) the AWU did not submit a log of claims or otherwise have any input into the terms of the Agreement;
(c) the AWU did not attend any bargaining meetings;
(d) the AWU must have known of the Commission’s hearing of 1 July 2014 at least from 23 June 2013 when the Commission sent a notice of listing for the hearing; and
(e) at the hearing, the AWU was represented by Mr D Liston in his capacity as a bargaining representative.
[7] The applicant observed that the AWU had not filed a Form F18 until 11 July 2014; 32 days after the applicant had filed its approval application, 18 days after the AWU was notified of the hearing and 10 days after the Agreement was approved by the Commission. It was submitted that the AWU had had ample opportunity to provide it and the Commission with its Form F18, but had failed to do so.
[8] The applicant submitted that s 183(2) was a mandatory provision which required the Form F18 to be filed with the Commission and the employer before the Commission approved the Agreement. This was a pre-condition to the recording of a note as to coverage in accordance with s 201(2) of the Act; See: RotoMetrics Australia Pty Ltd t/a RotoMetrics v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and others [2011] FWAFB 7214 (‘RotoMetrics v AMWU’).
[9] It was further submitted that the AWU’s failure to give the required notice is fatal and not capable of being rectified or waived by the Commission. Accordingly, the AWU cannot be covered by the Agreement.
For the AWU
[10] Mr S Crawford argued that it was the applicant which had failed to comply with the Fair Work Commission Rules 2013 (the ‘Rules’). The applicant had acknowledged the AWU was not only a bargaining representative for the employee, but was also a default bargaining representative for other Union members, under s 176(1) of the Act.
[11] Mr Crawford submitted that Schedule 1 of the Rules outlines the service requirements on the applicant for the approval of an enterprise agreement. It was claimed that the AWU was unable to locate any record of being served with either the Form F16 or Form F17 for the Agreement. The applicant offered no evidence of having done so. In these circumstances, the Commission would not have approved the Agreement, because of the applicant’s failure to comply with the service requirements.
[12] Mr Crawford said that the AWU was not aware of the hearing of the application until 23 June 2014. This meant that the AWU was denied procedural fairness in that it only had 13 days to prepare its Form F18. Mr Crawford further noted that:
- the Commission is required to perform its functions in a manner that is fair and just and must take into account equity and good conscience;
- a decision to refuse coverage to the AWU will limit the ability of AWU members to be represented by their Union; and
- such an outcome would be contrary to the Act’s objective set out in s (3)(e).
[13] In the alternative, Mr Crawford argued that the Commission could still determine that the AWU will be covered by the Agreement because the approval process had not concluded. The decision of 1 July 2014 was an ‘interim’ decision and was therefore not final; See: DHL Supply Chain.Mr Crawford put that where the approval process was not finalised until a decision on union coverage was made, an employee organisation could still file a Form F18 up to the date of the decision. This had been clearly done in this case.
[14] Finally, Mr Crawford noted that the AWU’s rules provide for the coverage of employees performing catering and cleaning work.
[15] In reply, Dibbs Barker demonstrated by way of unequivocal email evidence that the AWU had been served with the applicant’s Form F16, Form F17, the Agreement and the Notice of Representational Rights on 12 June 2014 by Ms Briony Reeve, HR Advisor. The email was addressed to [email protected] and there was no error report indicating that Mr Liston had not received the documents.
[16] The applicant added that the completion of the F18 is neither difficult or time consuming. Accordingly, the claim of a denial of procedural fairness cannot be sustained. Further, the applicant rejected the AWU’s submission that the ‘Agreement process’ had not been completed. The notion of an ‘Agreement process’ does not appear anywhere in the Act. It was abundantly clear that the Commission had approved the Agreement, if not on 1 July 2014 at the hearing, at least by 10 July when the formal decision was published.
[17] In the alternative, even if the Commission has the requisite jurisdiction, the only issue not finalised was coverage, not whether the Agreement could be approved. The earlier decision does not contemplate it being ‘interim’.
[18] The applicant further submitted that even if the service of documents had not been properly effected (which was denied), this was a procedural requirement which could be waived, not a statutory requirement such as s 183(2), which was mandatory. Thus, the two requirements were vastly different.
[19] The applicant put that the provisions of s 201(2) of the Act do not prevent the Commission from reserving the coverage question, nor do they affect the approval of the Agreement. In any event, the Commission could not be satisfied that the AWU had met its statutory obligations. It is not entitled to be covered by the Agreement.
CONSIDERATION
Relevant legislation and principles
[20] The sections of the Act relevant to the determination of this matter are found at ss 183 and 201 as follows:
‘183 Entitlement of an employee organisation to have an enterprise agreement cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).
...
201 Approval decision to note certain matters
Approval decision to note model terms included in an enterprise agreement
(1) If:
(a) the FWC approves an enterprise agreement; and
(b) either or both of the following apply:
(i) the model flexibility term is taken, under subsection 202(4), to be a term of the agreement;
(ii) the model consultation term is taken, under subsection 205(2), to be a term of the agreement;
the FWC must note in its decision to approve the agreement that those terms are so included in the agreement.
Approval decision to note that an enterprise agreement covers an employee organisation
(2) If:
(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and
(b) the FWC approves the agreement;
the FWC must note in its decision to approve the agreement that the agreement covers the organisation.
Approval decision to note undertakings
(3) If the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement, the FWC must note in its decision to approve the agreement that the undertaking is taken to be a term of the agreement.’
[21] Rule 24(3) of the Commission’s Rules sets out that an employee organisation which was a bargaining representative for the agreement, may utilise the approved Form F18 to give the Commission and the employer the written notice required under s 183 above. Invariably, this is the mechanism utilised by employee organisations to comply with the notice requirements under s 183.
[22] A further explanation of the notice requirements under s 183 can be found in the Explanatory Memorandum to the Fair Work Bill 2008 at paras 753-755 as follows:
‘Clause 183 - Entitlement of an employee organisation to have an enterprise agreement cover it
753. After an enterprise agreement has been made, an employee organisation that was a bargaining representative for a proposed agreement may notify FWA, in writing that it wants to be covered by the agreement. (For the rules on coverage, see clause 53.) When an employee organisation is covered by an agreement, it will have certain entitlements that it would not otherwise have. For example, an employee organisation that is covered by an agreement would be able to enforce the agreement to ensure that the employer is meeting its obligations. Furthermore, the permitted matters that may be included in an agreement include matters pertaining to the relationship between the employer or employers and the employee organisations that will be covered by the agreement.
754. Subclause 183(2) provides that an employee organisation must give the notice that it wants to be covered by the agreement to FWA before FWA approves the agreement. A copy of the notice must also be given to each employer covered by the agreement before FWA approves the agreement.
755. The legislative note at the end of clause 183 refers to subclause 201(2) which requires FWA to note in its decision to approve an enterprise agreement that the agreement covers the employee organisation [my emphasis].’
[23] The applicant relied on a decision of the Full Bench of Fair Work Australia (as the Commission then was) in RotoMetrics v AMWU, in which the Union in that case had provided a copy of the notice under s 183 to the Commission, but not to the employer prior to the approval of the Agreement by the Commission. Notably, in the present case, the AWU has not filed or served the required notice at all, until 10 days after the Commission’s approval of the Agreement. In RotoMetrics v AMWU the Full Bench said at paras [18]-[20]
‘[18] The AMWU’s submission that s.201(2) of the Act relates solely to s.183(1) gives s.183(2) no work to do in respect of the giving of a notice to be covered or agreement approval more broadly or in any other respect so far as we are able to ascertain, whether in relation to the giving of a copy of a notice to an employer or in relation to the time at which a notice is required to be given. In our view, s.183 must be read as a whole, with s.183(2) setting out conditions in respect of the giving of a written notice. Such a reading of s.183 gives s.183(2) a statutory purpose, consistent with a purposeful interpretation of the statutory provisions.
[19] We also note that our approach in which s.183(2) of the Act prescribes conditions in relation to the giving of notice under s.183(1), thereby incorporating the temporal requirement in s.183(2) for the giving of a notice prior to the approval of the agreement, is consistent with the language of s.201, in which an employee organisation “has given” notice, at which point Fair Work Australia must note in its decision to approve the agreement that the agreement covers the organisation.
[20] We do not accept the characterisation of the requirement to give a copy of the written notice to each employer covered by the agreement before approval as a procedural requirement. Section 183(2) of the Act contains substantive requirements, setting out conditions which must be satisfied in respect of a written notice stating that the organisation wants the enterprise agreement to cover it, which are a pre-condition to the requirement in s.201(2) of the Act upon Fair Work Australia to note in its decision to approve an agreement that the agreement covers the organisation. Those requirements, as set out in the Explanatory Memorandum, at paragraph 754, are:
“Subclause 183(2) provides that an employee organisation must give the notice that it wants to be covered by the agreement to FWA before FWA approves the agreement. A copy of the notice must be given to each employer covered by the agreement before FWA approves the agreement.”’
[24] Importantly, from the decision above and the plain reading of s 183 (in particular, the use of the words ‘must be given...’ and ‘before the Commission approves the agreement’), it is pellucidly clear that there is no discretion to the Commission to waive, amend or correct any irregularity in respect to the notice being given to the Commission and a copy to the employer covered by the Agreement ‘before the FWC approves the Agreement.’ Of course, I acknowledge that the AWU argues that my decision of 10 July 2014 was ‘interim’ in nature and the matter was not formally concluded until the extant issue of coverage was determined. I shall return to this proposition shortly.
[25] However, for present purposes, the following factual matrix is apposite:
(a) the AWU has coverage of the employees performing the work to be covered by the Agreement;
(b) the AWU was appointed by two employees as their bargaining representative;
(c) the AWU had no input into the bargaining process and did not attend any bargaining meetings;
(d) notwithstanding the AWU argued it had not received the bargaining documentation or the originating documentation from the applicant, the National Office of the AWU was sent a notice of listing on 23 June 2014 for the approval hearing, listed on 1 July 2014;
(e) there was uncontested evidence from Ms Briony Reeve that the relevant employer documentation was sent to the AWU on 12 June 2014 at [email protected]. I have no reason to doubt this evidence;
(f) at no time during the period leading up to 1 July 2014 hearing did the AWU take any steps to give the required notice under s 183 of the Act; and
(g) the AWU’s Form F18 purporting to give notice of wishing to be covered by the Agreement was still not filed until 11 July 2014 - 10 days after the hearing.
[26] Given the mandatory requirements of s 183 of the Act - which would appear to be an insurmountable hurdle for the AWU to overcome - it is perplexing to me that such an experienced, well-resourced employee organisation would take no steps to file its Form F18 from at least 23 June 2014 until 11 July 2014. After all, it is hardly an onerous or complex task. It is routinely observed in the hundreds of approval applications which come before the Commission in which an employee organisation has had or may have an interest. I also note in passing, that the Form F18 provides for the employee organisation to set out that they have not even read the employer’s statutory declaration (F17).
[27] Mr Crawford valiantly submitted that the AWU was denied procedural fairness because it had only 13 days to prepare its Form F18. Such a submission was disingenuous, but probably made ‘tongue in cheek’. If it truly takes an organisation, such as the AWU, to prepare a simple F18 more than 13 days, then there is something seriously awry with the AWU’s internal processes.
[28] In my view, the ultimate question of the AWU’s coverage under the Agreement is relatively straightforward. In short, s 183 is mandatory and a precondition to the Commission noting in its decision that an employee organisation/s is to be covered by the Agreement (s 201(2)(a)). Having failed to meet the mandatory requirements, the AWU’s application for coverage under the Agreement must be refused.
[29] Nevertheless, in deference to the AWU’s alternative argument that my decision of 1 July 2014 was ‘interim’ in nature and therefore not final for the purposes of the ‘before the FWC approves the Agreement’ test, I respectfully disagree. The AWU relied on Cambridge C’s decision in DHL Supply Chain as did I, in the 1 July decision.
[30] However, I do not consider the decision of 1 July 2014 to be ‘interim’ in any sense of that word meaning an interim decision before finally approving the Agreement. At no point, did I describe the decision as an ‘interim’ one. In fact, I make clear that I approved the Agreement, with undertakings, effective from 8 July 2014, without qualification or any suggestion that its terms or conditions were to be altered in any way. The decision was final. This decision can only be properly characterised as a separate and independent decision relating only to the AWU’s coverage of the Agreement.
[31] In addition, my reliance on DHL Supply Chain earlier, related only to the procedural process of moving forward without unduly delaying the approval of the Agreement and the benefits to employees flowing therefrom arising from its approval. In any event, the Commissioner’s decision in DHL Supply Chain, can be distinguished as it was unrelated to the issue concerning compliance with s 183 of the Act. As I understand it, the Transport Workers’ Union of Australia’s (TWU) coverage in that case was objected to by the employer on the grounds that its rules did not cover the work of the employees to be covered by the Agreement. Compliance with s 183 had been met as the TWU had filed and served its F18, some 9 days prior to the approval hearing. That is entirely different to the facts and circumstances of this case.
[32] For the aforementioned reasons, the AWU’s request to be covered by the Agreement must be refused. I order accordingly.
DEPUTY PRESIDENT
Final written submissions:
Applicant - 22 July, 12 August 2014
Australian Workers’ Union - 4 August 2014
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