Mr Michetta Pty Ltd T/A Brumbys Kiama and Shellharbour
[2010] FWA 2093
•15 MARCH 2010
[2010] FWA 2093 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/23563)
COMMISSIONER MCKENNA | SYDNEY, 15 MARCH 2010 |
Brumbys Kiama and Shellharbour Enterprise Agreement/Co Pty Ltd T/A Name Enterprise Agreement
[1] On 31 December 2009, Mr Michetta Pty Ltd t/as Brumbys Kiama and Shellharbour filed an application, pursuant to s.185 of the Fair Work Act 2009 (“the Act”), seeking the approval of an enterprise agreement.
[2] I decline to approve the agreement because the pre-approval requirements have not been met. I would, in any event, have declined to approve the agreement on other grounds. These are my reasons.
[3] In the statutory declaration comprising the Form F17 (Employer’s Declaration in Support of Application for Approval of Enterprise Agreement), a director of the applicant company declared that the last notice to employees under s.173(1) of the Act (which deals with giving notice of employee representational rights) was given on 19 December 2009.
[4] As the vote was conducted on 28-29 December 2009, the pre-approval requirements of the Act have not been met. In this respect, s.181 of the Act specifies circumstances in which employers may request employees to approve a proposed enterprise agreement:
“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.”
[5] As the 21 day requirement in s181(2) of the Act has not been met, the application cannot be approved. I should note that while additional evidence has been adduced in the proceedings in relation to other concerns I raised about the application, no additional evidence was adduced to address the response provided at cl.2.7 of the Form F17 in relation to the date that notice was given to employees concerning representational rights.
[6] Putting aside the pre-approval requirements, I would, in any event, have dismissed the application on other grounds.
[7] The agreement is a short document, with clauses titled as follows:
“1. Who is bound by the Agreement?
2. Effect of Agreement
3. Period of Operation
4. Dispute Resolution Procedure
5. Wages
Leave provisions
6.1 Annual Leave
6.2 Personal/carer’s leave
6.3 Parental Leave
7. Flexibility
8. Consultation”
[8] The principal purpose of the agreement was to incorporate the terms and conditions of certain industrial instruments, as specified in cl.2 of the agreement. That clause reads as follows:
“2. Effect of Agreement
This Agreement incorporates the terms and conditions of the following award [sic] into this Agreement.
Baking Industry (State) Award
Shop Employees (State) Award”
and the parties to the agreement are described as follows:
“1. Who is bound by the Agreement?
The parties to this Agreement are:
Mr Michetta Pty Ltd T/A Brumby Kiama and Shellharbour [ABN number and address]
and
the employees covered by the parent award.”
[9] The difficulty with cl.1 and cl.2 of the agreement, and it is a fundamental difficulty, is that there is no instrument titled the Baking Industry (State) Award. The submissions by the BIA indicated that the reference to the Baking Industry (State) Award was a typographical error, and that another instrument, namely the Bread Industry (State) Award AN 120080, should have been specified in cl.2 of the agreement.
[10] In an earlier decision in which I declined to approve the Moxons Bakery Pty Ltd Enterprise Agreement ([2010] FWA 621), I commented as follows in relation to similar references to the Baking Industry (State) Award in that earlier agreement:
“[19] The references to the Baking Industry (State) Award in the agreement and the Form F17 raise a range of issues militating against the approval of the application, not least the application of the no disadvantage test to one of the reference instruments nominated by the applicant.
[20] Questions necessarily also arise about the information said to have been given to employees to explain the agreement. For example, as a pre-approval requirement, s.180(2)(c) of the Act provides that, during the access period, the employer must ensure that employees are given a copy of any material incorporated by reference in the agreement. Self-evidently, the applicant could not have given the employees a copy of the Baking Industry (State) Award, the terms of which are said to be incorporated in the agreement. Nonetheless, the Form F17 provides the following response:
2.3 Please specify the steps taken by the employer (at least 7 days before of the start of the voting process) to ensure that the relevant employees were given, or had access to, the written text of the agreement and any other material incorporated by reference in the agreement: (s180(2)(a))
The agreement was provided to all staff and staff were advised of the location of the awards in the bakery for their perusal.
[21] The inclusion of references to the Baking Industry (State) Award also raises question[s] about the understanding of the applicant and its employees as to what they thought they were agreeing to in the agreement. As noted in the letter dated 3 December 2009, employees were relevantly advised that: “The agreement effectively locks in the award conditions you are currently employed under”. If the employees collectively or the applicant, or both, considered the effect of the agreement was to lock-in current entitlements, that view was obviously misplaced - at least in relation to employees otherwise thought to have been covered by an instrument titled the Baking Industry (State) Award.
[22] Section 188 of the Act deals with the circumstances when Fair Work Australia can be satisfied that an agreement has been “genuinely agreed”. The agreement contains provisions in relation to the Baking Industry (State) Award that could not, on any view of it, have been the subject of properly informed agreement between the applicant and its employees. This raises issues about whether there would be reasonable grounds, within the meaning of s188(c) of the Act, to doubt whether the employees genuinely agreed to the agreement.
[23] The purported inclusion in the agreement of terms and conditions of an instrument that does not exist raises further problems going squarely to the validity of the vote. That is, if the agreement can properly apply only to employees engaged under what was identified in the Form F17 and the agreement as the Shop Employees (State) Award, then other classes of baking-type employees not covered by the retail instrument participated in a vote for an agreement that had no relevance to their conditions of employment. The employees who were thought to have been covered by the Baking Industry (State) Award apparently could not, within the meaning of s.182 of the Act, have cast a “valid vote” to approve this agreement.”
[11] In support of the approval of this agreement, Mr Duc’s submissions noted that the reference instrument was properly identified at cl.3.1 of the Form F17 as the Bread Industry (State) Award AN 120080, rather than as the Baking Industry (State) Award. He relied also on an affidavit of an employee of the applicant, which relevantly indicated that that he would be prepared to give evidence in support of a statement that read as follows:
“I’m a employee of Mr Michetta Pty Ltd. The award used in our bakery is bread Industry (State) award. This is the one shown when we voted for an agreement. [sic]”
[12] Mr Duc submitted it would appropriate that I correct or amend the agreement to remove the reference to the Baking Industry (State) Award and substitute the Bread Industry (State) Award. As to corrections and amendments, s.586 of the Act provides:
“586 Correcting and amending applications and documents etc
FWA may:
(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to FWA”
[13] I doubt it properly would be open to me to make a correction or amendment of the type advocated by Mr Duc, for to do so would be to change the content of a document that was the subject of a vote. If, however, I am wrong in relation to the power to effect a correction or amendment under s.586 of the Act in relation to the content of this agreement in the manner proposed by Mr Duc, I would not, in the exercise of discretion, make such a change. For the reasons outlined in the extract above from the Moxons decision, I cannot be satisfied, for example, that the agreement was genuinely agreed within the meaning of s.188(c) of the Act. To the extent the agreement purports to incorporate provisions concerning the Baking Industry (State) Award, this aspect of the agreement obviously could not have been the subject of properly-informed, genuine agreement between the applicant and its employees. Moreover, the baking employees who were treated in the agreement as having been covered by the Baking Industry (State) Award could not, within the meaning of s.182 of the Act, have cast a valid vote to approve this agreement.
[14] The Form F17 indicates at cl.1.1 that the name of the agreement is the “Brumbys Kiama and Shellharbour Enterprise Agreement”. This information is incorrect. That is, first, there is a coversheet to the agreement which bears the title “Mr Michetta Pty Brumbys Kiama and Shellharbour ENTERPRISE AGREEMENT” - which is different from the name provided at cl.1.1 of the employer’s declaration. Second, the name within the body of signed agreement itself is “CO PTY LTD T/A NAME ENTERPRISE AGREEMENT”. Mr Duc submitted this was a further typographical error which ought be corrected pursuant to s.586 of the Act, and that the correct title is as shown on the cover page. If I have the power to do so, I would similarly decline, in the exercise of discretion, to effect that proposed change - principally for reasons going to the question of whether the employees understood/genuinely agreed to the agreement they voted to approve.
[15] Mr Duc’s submissions addressed a number of other issues going to the content of clauses under the agreement concerning pay and conditions. In circumstances where the application is being dismissed due to a failure to meet the pre-approval requirements and the application would otherwise have been dismissed given the purported inclusion of a non-existent instrument, it is unnecessary to further consider those matters.
[16] The proceedings are concluded.
COMMISSIONER
Appearances:
A. Duc for the Baking Industry Association (NSW Employers).
Hearing details:
2010
Sydney
March 2, 4.
Final written submissions:
5 March 2010
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