National Union of Workers
[2010] FWA 4563
•21 JUNE 2010
[2010] FWA 4563 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
National Union of Workers
(AG2010/10416)
ITW BUILDEX AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2010
Manufacturing and associated industries | |
COMMISSIONER RYAN | MELBOURNE, 21 JUNE 2010 |
Application for approval of the ITW Buildex and National Union of Workers Enterprise Agreement 2010.
[1] An application for approval of the ITW Buildex and NUW Enterprise Agreement 2010 was filed with Fair Work Australia on 4 June 2010. The application was made by the National Union of Workers (NUW) which was a bargaining representative for employees. Forms F18 and F22 were also filed by the NUW.
[2] The Form F17 – Employer’s Declaration in Support of Application for Approval of Enterprise Agreement identified that the Notice of Employee Representational Rights was given to employees on the 17th February 2010 and that the agreement was voted on by employees on 21 May 2010. A copy of the Notice of Employee Representational Rights as issued to employees was attached to the Form F17.
[3] The Notice of Employee Representational Rights was generally in the form of the Notice contained in Schedule 2.1 of the Fair Work Regulations with the exception that the Notice contained an additional requirement which was emphasised in capitals and bolded by the employer on the Notice as follows:
“IF YOU WISH TO APPOINT A BARGAINING REPRESENTATIVE, PLEASE GIVE A COPY OF THE APPOINTMENT LETTER TO JULIE HAYMAN NO LATER THAN WEDNESDAY 24TH FEBRUARY 2010.”
[4] From information received from both the employer and the NUW it appears that less than half of the employees are members of the NUW. For members of the NUW the time constraint contained in the Notice of Employee Representational Rights may not have had any significant adverse impact on them given that each of the those employees would have, in the absence of appointing a specific bargaining representative, been represented by the NUW.
[5] However for all employees the effect of the additional requirement contained in the Notice of Employee Representational Rights was that employees were left with the clear impression that if they did not appoint a bargaining representative by the date specified by the employer then they would not be able to have a bargaining representative.
[6] In the present matter I have been assured by Ms Hayman for the employer that if any employee had appointed a bargaining representative after the 24th February 2010 the employer would have both recognised and dealt with the bargaining representative. I also accept Ms Hayman’s assurances that there was never any intention to mislead employees as to their rights to appoint a bargaining representative. It would appear that the employer’s enthusiasm to get bargaining underway led the employer into error. I have no difficulty in accepting both of Ms Hayman’s assurances and in particular her assurance that she would have accepted appointments of bargaining representatives after the 24th February, but that assurance to Fair Work Australia doesn’t undo the error created by the time limit placed in the Notice of Employee Representational Rights.
[7] The role of bargaining representatives under the Fair Work Act was clearly identified in the Explanatory Memorandum to the Bill.
Division 3 – Bargaining and representation during bargaining
696. Division 3 sets out the rights of employers and employees to appoint a person of their choice as their bargaining representative. It also ensures that each employee is notified of his or her right to representation when bargaining for a proposed enterprise agreement. These rules are adjusted for a proposed enterprise agreement that is a greenfields agreement and for a multi-enterprise agreement in relation to which a low-paid authorisation is in operation.
697. Bargaining representatives have a more significant formal role in the bargaining process compared to bargaining agents under the WR Act. Bargaining representatives are entitled to: bargain for enterprise agreements and depending on the type of agreement will usually be entitled to apply for (among other things) protected action ballot orders, bargaining orders, majority support determinations, scope orders and serious breach declarations. Bargaining representatives are also entitled to represent a person in matters before FWA (see clause 596). As part of their responsibilities, bargaining representatives for a single-enterprise agreement and a multi-enterprise agreement to which a low paid authorisation is in operation are required to meet the good faith bargaining requirements set out in subclause 228(1). Non-compliance with the requirements exposes a bargaining representative to bargaining orders. Division 3 also makes clear that an employer must not refuse to recognise or bargain with a bargaining representative.
[8] Whilst most employees who intend to appoint to a bargaining representative are most likely to do so in the early stages of the bargaining process for an enterprise agreement this is not the only time that an employee can or will appoint a bargaining representative. Issues as to the scope of an enterprise agreement or issues relating to the perceived need for bargaining orders may arise at any time before the agreement is made. The right of employees to appoint a bargaining representative pursuant to s.178 cannot be limited by time constraints imposed by the employer.
[9] Where an employer seeks to include in a Notice of Employee Representational Rights additional restrictions or limits (including time limits) upon the rights of employees to appoint a bargaining representative, then the employer has not complied with the requirements of s.173 of the Act. When s.173 speaks of the “right to be represented by a bargaining representative” it means the right to be represented as determined by the Act and not by the employer.
[10] Apart from the general position as described above, the Notice of Employee Representational Rights issued in this matter does not meet the specific requirements of s.174 of the Act.
[11] S.174(6) provides that the Regulations may prescribe matters relating to both the content of a Notice of Employee Representational Rights and/or the form of such Notice.
Regulation 2.05 provides:
2.05 Notice of employee representational rights — prescribed form
For subsection 174 (6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.
[12] Thus the Notice in Schedule 2.1 of the Regulations is prescribed and must be used by an employer in order to comply with both s.173 and 174 of the Act.
[13] The Regulations do not permit the employer to add any additional comments, restrictions, directions, etc to the words prescribed in Schedule 2.1 of the Regulations.
[14] This does not mean that an employer must simply copy Schedule 2.1 and issue it to employees.
[15] The very structure of Schedule 2.1 requires the employer to add essential and prescribed information such as the name of the employer and the name of the enterprise agreement and the proposed coverage of the enterprise agreement.
[16] Also the very structure of Schedule 2.1 requires that the employer may have to delete up to 2 paragraphs of the contents of Schedule 2.1 in circumstances where there is no low-paid authorisation or where no employees are covered by an individual agreement-based transitional instrument.
[17] In the present matter the employer had made the necessary changes to the Schedule 2.1 Notice but had also added a direction which was not permitted nor required by the Schedule 2.1 Notice.
[18] The Notice of Employee Representational Rights issued to employees in this matter did not conform to the prescribed form set out in Schedule 2.1 and therefore the employer had not complied with the requirements of s.174 of the Act.
[19] In the present matter the employer concedes that the Notice of Employee Representational Rights issued to employees on the 17th February 2010 does not meet the requirements of the Act and the employer, with the cooperation of the NUW, has recommenced the process of making an enterprise agreement with its employees.
[20] Whilst I must dismiss the application because of the failure to issue a Notice of Employee Representational rights to employees in accordance with the Act, I make the observation that if the Notice of Employee Representational Rights had been issued correctly then I would have approved the agreement as I was otherwise satisfied as to the requirements of s.186 and 187 of the Act.
[21] The application for approval of the ITW Buildex and National Union of Workers Enterprise Agreement 2010 is dismissed.
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