National Union of Workers
[2012] FWA 9206
•30 OCTOBER 2012
[2012] FWA 9206 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
National Union of Workers
(AG2012/7653)
COMMISSIONER LEE | MELBOURNE, 30 OCTOBER 2012 |
Bohler Uddeholm (Australia) Pty Ltd and National Union of Workers Enterprise Agreement 2012.
[1] An application has been made for approval of a single enterprise agreement known as the Bohler Uddeholm (Australia) Pty Ltd and National Union of Workers Enterprise Agreement 2012 (the proposed Agreement). The application was made by the National Union of Workers, pursuant to s.185 of the Fair Work Act 2009 (the Act). The application for approval was lodged on 16 August 2012.
Notice of representational rights
[2] On 30 August 2012, I wrote to the Applicant (copied to the employer, Bohler Uddeholm Australia Pty Ltd) raising a number of issues with the application as lodged. One of the issues raised was the provision of the notice of representational rights. My correspondence in this regard was as follows;
“In the Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17), question 2.4 asks the following of the employer;
“Did the employer take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the Agreement as required by s.173?
[ ] Yes
[ ] No
If “Yes”, please attach a copy of the notice given to employees and explain the steps taken:”
The employer has answered yes to this question, however no copy of the notice of representation rights was attached to the application and there was no explanation provided as to the steps taken by the employer to give the notice to employees.
I ask that you please forward a copy of the notice given to employees.”
[3] On 11 September 2012, I received a statutory declaration from Mr Matko Bozanic, Managing Director of Bohler Uddeholm Australia Pty Ltd in response to my correspondence. This statutory declaration did not advise that a copy of the notice of representational rights was provided to employees to be covered.
[4] Further correspondence between Chambers and the employer occurred and on 27 September 2012, the employer wrote to me advising that having considered their position, they sought to formally withdraw the application.
[5] The employer lodged a notice of discontinuance which was of no effect as the Applicant in this matter was the National Union of Workers. On 4 October 2012, I received correspondence from the National Union of Workers indicating that they were having difficulty ascertaining whether a notice of representational rights was issued to employees as the relevant employer contacts were still overseas. The National Union of Workers advised that it did not wish to discontinue the application until further information had been obtained.
[6] On 16 October 2012, I received a statutory declaration by Jason Paterson, Branch Manager - Melbourne Tool Steel, Bohler Uddeholm Australia Pty Ltd in relation to this matter. While this statutory declaration explained that a meeting was held and some employees were told about their rights to representation it did not evidence that a complying notice of representational rights was given to employees.
[7] On 17 October 2012, I wrote to all parties advising that my preliminary view regarding the provision of a complying notice of representational rights, and advised that I could not be satisfied that the proposed agreement met the requirements of the Act.
[8] I advised the parties that they could seek to be heard on the matter, and asked for a formal request for a hearing to be made by close of business Friday 19 October 2012. I advised that in the event that I did not received a formal request for a hearing, I proposed to dismiss the application.
[9] I did not receive a request for a hearing by close of business 19 October 2012.
Relevant provisions of the Act
[10] Section 186 of the Act provides that if an application for approval of an enterprise agreement is made under section 185, Fair Work Australia must approve the agreement if the requirements set out in ss.186 and 187 are met.
[11] One of the requirements of section 186 is that the agreement has been genuinely agreed to by the employees covered by the Agreement (see s.186(2)(a).
[12] Section 188 of the Act sets out when employees have genuinely agreed to an enterprise agreement. Section 188 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.”
[13] In Galintel Rolling Mills Pty Ltd T/A The Graham Group 1, The Full Bench considered section s.181(2) and the provision of the notice of representational rights. The Full Bench stated;
“Subsection 181(2) provides that the employer request to approve an agreement must not be made until at least 21 days after the day on which the last notice under s173(1) in relation to the agreement is given. The AMWU contends that s181(2) can only be satisfied if a valid Notice of Representational Rights is given. Even though the requirement in s181(2) relates to the required period of time between certain events, we agree that the requirement cannot be satisfied if a notice referred to in s173 is not given. It is therefore necessary to consider whether the employer gave a notice under s173.” 2
[14] Section 173 of the Act provides as follows:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice see section 174.”
[15] As discussed above, I am not satisfied that a notice of representational rights was given to each employee who was to be covered by the agreement and was employed at the notification time for the agreement.The application for approval is refused on the basis that a notice of representational rights was not given as required by the Act.
[16] The application is dismissed.
COMMISSIONER
1 [2011] FWAFB 6772
2 Galintel Rolling Mills Pty Ltd T/A The Graham Group [2011] FWAFB 6772, [38]
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