Mr Michael Priestley v Department of Parliamentary Services
[2011] FWA 6431
•23 SEPTEMBER 2011
[2011] FWA 6431 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Mr Michael Priestley
v
Department of Parliamentary Services
(AG2011/12006)
COMMISSIONER DEEGAN | CANBERRA, 23 SEPTEMBER 2011 |
Application for approval of the Department of Parliamentary Services Enterprise Agreement 2011 - objection by individual bargaining agent - objection dismissed, agreement approved.
[1] This matter arises out of an application made on 9 September 2011 for approval of the Department of Parliamentary Services Enterprise Agreement 2011 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act).
[2] The Agreement was ‘made’ for the purposes of s.182 of the Act on 2 September 2011.
[3] The Secretary of the Department of Parliamentary Services (DPS) filed a statutory declaration (Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement) setting out those matters about which FWA must be satisfied in order to approve the Agreement.
[4] Sections 186 and 187 of the Act set out the requirements for the approval of agreements by Fair Work Australia.
[5] On the same day as the Agreement was lodged for approval, Mr Michael Priestley, an employee of DPS who was an individual bargaining representative for the Agreement, lodged an objection to the approval of the Agreement.
[6] The application for approval was listed for hearing on 16 September 2011. DPS sought approval of the Agreement, submitting that the requirements of sections 186 and 187 of the Act were satisfied and that FWA was required to approve the Agreement in accordance with s.186(1) of the Act.
The Objection
[7] In his notice of objection to the approval of the Agreement Mr Priestly set out nine grounds upon which he submitted the Agreement did not meet the requirements for approval under the Act. At the hearing Mr Priestley made submissions elaborating on each of the grounds.
[8] Mr Priestley claimed that DPS had failed to meet the relevant pre-approval requirements of the Act. It was also his contention that the Agreement was not genuinely entered into or genuinely made by the parties. He put that his nine grounds of objection dealt with the DPS’ failure to comply with sections 180, 186 and 228 of the Act.
[9] Mr Priestley’s main concern with the Agreement was set out in Ground 5.1 of his notice of objection. It was his contention that, if the Agreement were approved, disputes that had arisen under the current agreement covering DPS employees could no longer be dealt with because rights and liabilities under the current agreement would be extinguished as they were not specifically preserved by the terms of the new Agreement. Mr Priestley also argued that the Agreement was contrary to sections 38 and 39 of the Act. He stated that s.38 is an injunction preventing the Commonwealth from enacting laws which exceed the power of the Commonwealth and that s.39 deals with the acquisition of property under the Act. According to Mr Priestley the Agreement, by “not including terms under which accrued rights can be preserved in the new enterprise agreement, extinguished acquisition of property rights to the extent that benefits and entitlements that were approved under the previous agreement, whether they be salary entitlements, whether they be entitlements under the Act, whether they be workplace rights, are extinguished by this agreement and this is the intention of the respondent”. 1 He argued that the Agreement sought to both extinguish rights accrued by employees under the 2008 agreement and extinguish workplace rights created by the 2008 agreement, which were protected under s.341 of the Act.
[10] Mr Priestley elaborated upon his concerns by explaining that he was in dispute with DPS about s.33 of the Parliamentary Services Act 1998. The dispute procedures had been followed and he had indicated to DPS that he intends to refer the dispute to Fair Work Australia. It was his contention that, if the Agreement were to be approved, that dispute “drops off the table, notwithstanding the preservation provisions of the Transitional Act”. 2
[11] Ground 5.2 of the objection took issue with the terms of the employer’s declaration that stated that the name of the employer is the “Department of Parliamentary Services” and that the Secretary of DPS was not aware of other agreement(s) in identical or substantially identical terms. It was Mr Priestley’s position that the employer was, in fact, the Secretary of DPS, and that the Secretary was aware that the current DPS Agreement was in substantially identical terms. Mr Priestley put that the Act does not recognise the “Department of Parliamentary Services” as an employer. He was also concerned that the Secretary of the Department was not bound by the terms of the Agreement, particularly given the functions ascribed to the Secretary under the Agreement.
[12] Mr Priestley claimed (Ground 5.3) that, contrary to the provisions of s.180(5)(c) of the Act, the employer had failed to explain the terms of the Agreement and the effect of those terms to DPS employees. Ground 5.4 of the objection was that the employer had failed to explain the Agreement in an appropriate manner and did not comply with the requirements of s.180(5)(b) of the Act. In support of these two grounds Mr Priestley claimed that DPS had merely emailed a copy of the Agreement to employees and told them to work it out for themselves or direct any questions to their representatives. According to Mr Priestley DPS failed to properly explain the changes made by the Agreement to existing consultation arrangements and dispute settling processes. In addition, he claimed that DPS had failed to explain that some employees would be better off than others under the Agreement. In this respect he identified increases to several allowances and the broadbanding of some levels as changes which advantaged only some employees.
[13] Ground 5.5 of the objection was that the Agreement had not been genuinely agreed to as the “majority vote is manifestly unrepresentative of the total number of employees covered by the Agreement”. Mr Priestley’s claim was that as only 349 of a total of 835 employees voted to support the Agreement, the Agreement was not “genuinely agreed to” as required by s.186(2)(a) of the Act. It was also Mr Priestley’s argument that s.182(1) of the Act, which provides that an agreement is made when approved by a majority of those employees who vote in the approval ballot, is unconstitutional and contrary to s.39 of the Act as it was his view that it was not the “intention of the legislature that a simple majority vote as stated in the section should have the intended effect of extinguishing employees’ accrued rights”. 3
[14] Mr Priestley also stated that those employees who gained more from the Agreement than others (through increases in specific allowances or broadbanding of certain levels) constituted a large percentage of the staff. His point appeared to be that these people may have carried the vote.
[15] A further objection (Ground 5.6) was that there were grounds for believing that the Agreement was not genuinely agreed to by the employees as “the percentage pay adjustment (3 per cent) to commence on 1 July 2011 is less than the rate of inflation (3.6 per cent), below the annual increase in annual weekly earnings in the public sector (4.4 per cent) and less than the pay rise to award dependent employees (3.4 per cent)”.
[16] Mr Priestley also alleged that, contrary to the provisions of s.180(2)(a)(ii) of the Act, the employer had failed to provide to employees material that was incorporated by reference in to the Agreement (Ground 5.7). In this respect Mr Priestley referred to clause 4(e) of the Agreement which reads:
“The purposes of the Agreement are:
...
(e) to provide an environment in which DPS is enabled to achieve its Vision and its Mission, including:
(i) considering carefully our approach to client service;
(ii) encouraging a consistent and transparent strategic leadership and management style to reinforce the commitment of our employees; and
(iii) encouraging the development of a diverse workforce of skilled employees to meet the customer business service obligations now and into the future.”
[17] It was his contention that the employer had failed to provide DPS employees with either its “Mission” or its “Vision”. Similarly Mr Priestley claimed that the employer had failed to provide employees with copies of the DPS People Strategy 2007-2010 referred to in clause 255 of the Agreement.
[18] Ground 5.8 of the objection claimed that the employer had failed to meet the good faith bargaining requirements of the Act by showing preference to one group of employees to the disadvantage of another by failing to give genuine consideration to the proposals of bargaining representatives, and because the Agreement contains terms identical to those of the current DPS Agreement which the employer had “previously repudiated and treated as non-binding” in proceedings in Fair Work Australia”.
[19] Mr Priestley argued that because DPS had given some employees more than the 3% per annum salary increase it claimed was all that was available, it had failed to give genuine consideration to the proposals of those bargaining representatives who represented the other employees.
[20] Finally, Ground 5.9 of the objection was that the Agreement “expunged” award conditions in clause 10 and 11 of the Parliamentary Departments Staff Award 1998 (the Award) to the disadvantage of employees covered by the Agreement. Mr Priestley’s argument was that the dispute settlement clauses of the underpinning Award were superior to those found in the Agreement as under the Agreement only disputes about the Agreement and the NES could be dealt with, whereas the Award provisions covered all industrial disputes.
[21] It was Mr Priestley’s position that there were other terms and conditions of employment contained in Parliamentary Service Determinations, and disputes over these matters would not be covered by the dispute settlement provisions of the Agreement. He also argued that the Award provision allowed any dispute referred to the tribunal to be pursued to finality whereas disputes under the Agreement would lapse if a new agreement took effect.
The Views of Bargaining Representatives
[22] Three registered organisations that were bargaining representatives for the Agreement had each lodged a Form 22 Notice for Employee Organisation to be Covered by Enterprise Agreement, prior to the hearing. The CPSU, the Community and Public Sector Union (the CPSU) and the Media Entertainment and Arts Alliance (MEAA) also each lodged a Form 18 - Declaration of Employee Organisation in Relation to an Application for Approval of an Enterprise Agreement. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) lodged only a Form 22. Although all the bargaining representatives for the Agreement were notified of the hearing there were no appearances on behalf of any others.
[23] At the hearing Ms Hartmann represented both the CPSU and, as agent, the MEAA. Neither organisation resiled from their position of support for approval of the Agreement. While the CPSU Form 22 raised two administrative discrepancies in the statutory declaration signed by the employer (an erroneous reference to a multi-enterprise agreement and a failure to list two former agreements that applied to DPS), neither the CPSU or the MEAA took issue with the substantive claims made by the employer in the Form 17 lodged in support of the Agreement.
[24] Mr Morrison for the AMWU took the view that Mr Priestley’s allegations deserved to be examined but was unable to raise any evidence in support of those allegations. When pressed he stated that the steps taken by DPS to explain the terms of the Agreement were sufficient to meet the requirements of the Act.
[25] Despite being unable to give any example of a failure by DPS to meet the requirements of the Act for approval of the Agreement Mr Morrison submitted that the Agreement should not be approved solely on the basis of Mr Priestley’s accusations.
[26] Neither Mr Morrison nor Ms Hartmann supported Mr Priestley’s contention that, during bargaining, DPS had not made it clear that it would bargain over changes to allowances and to the broadbanding of levels which could result in monetary increases above the 3% per annum salary increases offered.
[27] Ms Hartmann, on behalf of the CPSU and the MEAA, supported the approval of the Agreement, “in the absence of facts that perhaps Mr Priestley may have been able to produce”.
The Employer
[28] The employer’s representative handed an outline of submissions in response to Mr Priestley’s objections and expanded upon those submissions at the hearing. The employer also tendered a statement 4 of Ms Freda Hanley, a Senior Executive Service Employee of DPS, in support of the employer’s claim that all reasonable steps had been taken to explain the terms of the Agreement and the effects of those terms to employees. Ms Hanley was also made available for cross-examination in relation to the statement. Ms Hanley’s statement detailed the written material provided to the employees in explanation of the Agreement terms, an intranet portal that was set up to enable employees to gain further information about the Agreement, and information sessions run for employees during the consideration period.
[29] Under cross-examination Ms Hanley was unable to refute Mr Priestley’s claim that employees of the Parliamentary Library had not had an information session provided for them.
[30] The employer responded to Mr Priestley’s grounds of objection as follows:
Ground 1: Mr Priestley did not identify how the objection put in this ground fell within one of the s.186 or 187 requirements for approval. In any event, it was submitted by DPS that the premise put was incorrect as items 2(2) and (3) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 had the effect of preserving rights and liabilities acquired, accrued or incurred under the current agreement as that agreement is a “transitional agreement” for the purposes of those provisions.
Ground 2: It was argued that the employer is sufficiently described in the Form 17, as the employer is the Commonwealth of Australia acting through the Department of Parliamentary Services. The Secretary of DPS is the employing authority, not the employer. It was also put that DPS was not aware of any other agreement in substantially identical terms as the Agreement.
Grounds 3 and 4: DPS submitted that it had complied with the terms of s.180(5) and (6) of the Act and the steps taken to achieve that purpose were set out in paragraphs 2.4 and 2.6 of the Form 17. Evidence was given by Ms Hanley, a Senior Executive Officer of DPS, which elaborated on the information provided in the Form 17 about the steps taken to explain to employees the terms of the Agreement.
Grounds 5 and 6: DPS noted that a majority of those who had voted in the ballot for approval of the Agreement had voted to support the Agreement. The Agreement was therefore made in accordance with s. 182(1) of the Act. An absolute majority of those to be covered by the Agreement is not required and would be inconsistent with the requirement set out in s.182(1) of the Act. It was also put that the quantum of the pay rise offered to employees was not a matter that went to the genuineness or otherwise of the Agreement of employees to the Agreement and that Mr Priestley’s objection in this regard was misconceived.
Ground 7: It was contended by DPS that the policies referred to by Mr Priestly in his seventh objection ground did not form part of the Agreement and were not incorporated by reference in the Agreement. Additionally it was argued that access was nevertheless provided to those policies as they were available on the DPS intranet throughout the access period.
Ground 8: DPS contended that Mr Priestley had not made out how the requirement for good faith bargaining was a matter with bearing on the approval requirements set out in ss.186 and 187 of the Act. It was noted that s.187(2) had no application as there was no scope order in place. Despite this, the employer argued that it had complied with the good faith bargaining obligations during the making of the Agreement and had given genuine consideration to the proposals of all bargaining representatives. It was also put for DPS that if a bargaining representative has concerns that the good faith bargaining obligations of the Act are not being complied with by an employer then mechanisms are available under the Act for orders to be made to ensure that bargaining is conducted in good faith. It was argued that, unless a scope order is in place, such matters should be dealt with during the bargaining process and not at the time approval is sought for a proposed Agreement.
Ground 9: It was the DPS position that the Agreement passed the Better Off Overall Test under ss.186(2)(d) and 193 and that the dispute settlement clause in the Agreement met the requirements of s.186(6) of the Act.
Consideration and conclusions
[31] Sections 186 and 187 of the Act set out the requirements for the approval of agreements by Fair Work Australia. In addition s.180 sets out steps that must be taken by an employer prior to requesting employees to approve an agreement under s.181. Section 182 of the Act sets out when an enterprise agreement is made.
[32] The required majority of employees taking part in the ballot approved the Agreement on 2 September 2011. As such, the Agreement was made on that date. The Secretary of DPS (Mr Alan Thompson) who is an employing authority under Schedule 6.3 (Item 3) of the Fair Work Regulations 2009 then made an application to FWA for approval of the Agreement. I am satisfied that Mr Thompson was a bargaining representative for the Agreement and that the application, given his status as an employing authority for the employees to be covered by the Agreement, is a valid application for the purposes of s.185 of the Act. I am also satisfied that the employer is the Commonwealth of Australia and that the Department of Parliamentary Services is a “particular Department as defined in the Parliamentary Services Act 1999”. 5There is no substance to Ground 5.2 of Mr Priestley’s objection. Both the Form 17 Declaration completed by Mr Thompson and the application for approval of the Agreement are valid.
[33] Mr Priestley made a number of claims that the employer had failed to comply with the pre-approval requirements of the Act before seeking the support of employees for the Agreement. I am satisfied that the employer did meet the necessary pre-approval requirements. In particular I am satisfied that the employer took all reasonable steps to ensure that employees were given copies of the written text of the Agreement and any other material incorporated by reference in the Agreement. I base that satisfaction on the information supplied in the employer’s statutory declaration signed by Mr Thompson and the additional information supplied in the statement of Ms Hanley. 6 Nothing in either Mr Priestley’s submissions, or the cross-examination of Ms Hanley has affected my satisfaction in that regard. Further, no matters were raised by Ms Hartmann on behalf of the CPSU and MEAA, or by Mr Morrison for the AMWU, that raised any doubt about the veracity of those statements made on behalf of DPS.
[34] I am not persuaded that either the “Vision” or the “Mission” referred to in clause 4 of the Agreement is incorporated by reference in the Agreement. I have reached the same view in relation to the DPS People and Strategies policy referred to in clause 255 of the Agreement. Even if I am wrong as to the incorporation of the documents I am satisfied, in any event, that the availability of the documents on the DPS intranet during the access period satisfies the requirements of s.180(2)(a)(ii) of the Act.
[35] There was no suggestion that the employer had not taken all reasonable steps to notify employees of the time and place for the vote on the Agreement for the purposes of s.180(3) of the Act. I note that the ballot was conducted by the Australian Electoral Commission.
[36] Despite Mr Priestley’s submission that no information session was held in the Parliamentary Library I am nevertheless satisfied, again on the basis of the information supplied in the employer’s F17 declaration and Ms Hanley’s statement, that DPS took all reasonable steps to explain the terms of the Agreement to the relevant employees. It was Mr Priestley’s own submission that the Agreement was “substantially identical” to the current agreement operating in DPS. Fact sheets setting out the changes from the current agreement were provided to all employees. Six registered organisations and nine individuals were bargaining representatives for the Agreement. There was no suggestion that particular groups of employees required additional explanation of the terms of the Agreement as a result of poor linguistic skills or youth. The evidence was that special arrangements were made to meet the needs of those employees who were less comfortable with using the intranet facilities generally utilised by DPS to inform employees.
[37] The terms of s.186(1) of the Act are clear in that, if the requirements of s.186 and 187 are met, an enterprise agreement properly brought before FWA must be approved. I will deal with each of the requirements of those sections.
Section 186(1) Basic rule
[38] I am satisfied that the application for approval of the Agreement has been made pursuant to s.185 of the Act.
Section 186(2)(a) Genuine agreement
[39] I am also satisfied that the employees who are covered by the Agreement genuinely agreed to the Agreement. In this respect I note that the ballot held satisfies the requirements of s.182 of the Act. I do not accept the submission put by Mr Priestly that, given the amount of the pay increase offered under the Agreement, I could not be satisfied that the agreement of the employees was “genuine”. I have no reason to believe that those employees who voted to support the Agreement were not genuine in that support. As was noted by Mr Priestley in his submissions, some employees obtained additional benefits under the Agreement.
Section 186(2)(c) Does not contravene section 55
[40] No submission was put suggesting that the terms of the Agreement contravened s.55 of the Act. I could not identify any provision of the Agreement which sought to exclude any provision of the National Employment Standards (NES) or was detrimental to an employee when compared to the NES and accept the answers given by Mr Thompson to questions concerning the NES in the Form 17.
Section 186(2)(d) Pass the BOOT
[41] I am satisfied that the Agreement passes the Better Off Overall Test. I do not accept the apparent submission of Mr Priestly that the replacement of dispute settlement procedures contained in clauses 10 and 11 of the Award disadvantage employees covered by the Agreement. It was Mr Priestley’s view that the Award provisions were superior to those of the Agreement. I do not agree with that proposition as it is unclear what dispute settlement powers are available under the Award. Clearly the dispute settlement procedures contained in the Agreement meet the requirements of s186(6) of the Act. Even if there were force in the argument concerning employees’ ability to access dispute settlement mechanisms in relation to a wider range of disputes under the Award, I would not consider the disadvantage to employees such that the Agreement would fail the Better Off Overall Test. Any diminution in the range of disputes that might be settled under the Agreement would be well compensated for by the superior salaries and conditions contained in the Agreement.
Section 186(3) Fairly chosen
[42] There was no suggestion that the group of employees covered by the Agreement was not fairly chosen. In this respect I note that clause 9 of the Agreement provides that the Agreement covers all non-SES employees of DPS. I am satisfied that the SES employees of DPS are an organisationally distinct group for the purposes of s.186(3A) of the Act.
Section 186(4) Unlawful terms
[43] I am satisfied that the Agreement does not include any unlawful terms. No objection was made on such a ground.
Section 186(4A) Designated outworker terms
[44] The Agreement includes no designated outworker terms.
Section 186(5) Nominal expiry date
[45] Clause 10 of the Agreement specifies 30 June 2014 as its nominal expiry date. In accordance with s.186(5)(b) of the Act I am satisfied that this date will not be more than 4 years after the approval of the Agreement by FWA.
Section 186(6) Dispute settlement term
[46] The dispute settlement term in the Agreement meets the requirements of s.186(6) of the Act in that it provides for the settlement, by FWA or an independent person, of both disputes arising under the Agreement and disputes in relation to the NES. Employees are permitted representation for the purposes of the dispute settlement procedures.
Section 187 Additional requirements
[47] As there is no scope order in operation in relation to the Agreement s.187(2) has no application so far as the approval of the Agreement is concerned. Similarly sections 187(3) and (5) have no impact on the approval of the Agreement given that it is neither a multi-employer agreement nor a greenfields agreement. 7
[48] So far as s.187(5) is concerned, I note that the Agreement does not cover pieceworkers, outworkers or school-based apprentices and school-based trainees. Although the Agreement covers shiftworkers there is no modern award in operation which covers employees covered by the Agreement. I note, however, that shiftworkers under the Agreement have additional annual leave entitlements consistent with that provided by the Parliamentary Departments Staff Award 1998, the pre-reform award which is the reference instrument for the purposes of the Agreement.
Other matters
[49] Mr Priestley raised a number of other matters in objecting to the approval of the Agreement. These do not appear to relate to those matters which are to be taken into account in approving an agreement under the Act. In such circumstances, even if made out, the matters could not prevent approval of the Agreement. So far as the matter of the extinguishment of accrued rights is concerned I accept the submission of the employer that the provisions of the Transitional Act have the effect of preserving accrued rights and liabilities where a transitional instrument (such as the current DPS agreement) is replaced by a Fair Work agreement (such as the Agreement subject of the present application for approval).
[50] I am not satisfied that there is any substance in Mr Priestley’s argument concerning sections 38 and 39 of the Act. I do not accept that the making of the Agreement could constitute the “acquisition of property” for the purposes of those provisions. Even if I am wrong about this, it is not a ground upon which I could refuse to approve the Agreement.
[51] As I am satisfied that the requirements of sections 186 and 187 of the Act have been met I must approve the Agreement. A decision approving the Agreement [2011] FWAA 6601 (PR514980) is issued separately.
COMMISSIONER
Appearances:
Mr Michael Priestley, self represented, for the Applicant.
Mr Jon Lovell, Blake Dawson, for the Respondent.
Ms Natalie Hartman, Community and Public Sector Union (also appearing on behalf of the Media Entertainment and Arts Alliance).
Mr Ian Morrison, AMWU, for the Australian Manufacturing Workers’ Union.
Hearing details:
2011.
Canberra:
September, 16.
1 Transcript PN134.
2 Transcript PN740.
3 Transcript PN279.
4 Exhibit DPS1.
5 Fair Work Regulations 2009 Schedule 6.3 Item 3.
6 Exhibit DPS1.
7 Fair Work Act 2009 sections 187(3), 184(3) and 187(5).
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