National Union of Workers

[2014] FWC 8984

[2014] FWC 8984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2014/8441)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 16 DECEMBER 2014

Application for approval of the Veyance Belting & National Union of Workers Enterprise Agreement 2014-2017.

[1] An application for approval of the Veyance Belting & National Union of Workers Enterprise Agreement 2014-2017 (the Agreement) was made by National Union of Workers (NUW) pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The application included a Form F17 Employer’s Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement, declared by Mr David Stone, General Manager of Veyance Belting Pty Ltd (F17). In response to 2.5 in the F17, the employer declares that employees were advised of the date, time and method of the vote “via the employee’s Notice Board and Union Delegate” on 17 November 2014.

[3] Further, in response to 2.8, the employer declares that voting commenced on 21 November 2014 and concluded on 22 November 2014.

[4] Given these declarations by Mr Stone, it would appear that employees were not given the requisite notice of the time place and method of voting to approve the enterprise agreement under the Act which is a pre-approval requirement which must be met before the employer can request employees vote on an enterprise agreement (s.181(1)).

Legislation

[5] Sections 180 and 181 of the Act are relevant and are as follows:

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the 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.”

[6] The combined operation of s.180(1), (3) and (4) and s.181(1) and (2) is that an employer can only ask employees to approve a proposed enterprise agreement if both of the following conditions have been met:

1 - the request that employees approve the agreement must be made at least 21 days after the last Notice of Employee Representational Rights was issued to employees (s.181(1) and (2)), and:

2 - the time place and method of voting to approve the enterprise agreement must be notified to employees at least 7 days before the vote is to occur (s.180(3) and (4)).

[7] In the present matter the conduct of the employer creates the appearance that the employer has met the requirements of s.181. However an employer can only be in a position to comply with s.181 if the employer has already complied with s.180.

[8] In the present matter the conduct of the employer makes it clear that the employer has not met the requirements of s.180(1) because of the failure of the employer to comply with s.180(3). Asking employees on 17 November 2014 to vote on 21 November 2014 does not meet the requirement of s.180(3).

[9] The consequence of not complying with s.180(3) is that the employer could not request the employees to approve the Agreement.

[10] This in turn means that the Agreement has not been made under s.182(1) which provides that:

“182(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”

[11] As the Agreement has not been made in accordance with s.182(1) of the Act,there is therefore no valid application before me and I dismiss the application.

Observations

[12] Clause 9.1 of the Agreement states:

“Veyance Belting will not employ persons covered by this agreement under the terms of an individual contract for the period of operations of this Agreement.”

[13] The problem with the term “individual contract” is that it includes a common law contract of employment. As every employee is engaged pursuant to a common law contract of employment, then the clause would operate so that no employee was covered by the agreement.

[14] Clause 19.2.2 contains a provision which permits the employer to withhold monies due to the employee if the requisite notice is not given upon termination, without the employee’s consent. I refer to the reasons set out in Hydro Chem Pty Ltd, [2014] FWCA 5163 in support of the contention that this provision is unenforceable given s.324(1)(b) of the Act.

[15] Clause 27.2 provides that the spread of hours may be altered by mutual agreement between the employer and the majority of employees in the plant or section(s) concerned. Whereas clause 36.2(c) of the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) only allows the spread of hours to be altered by 1 hour either side of the 6am or to 6pm spread. The provision in the Agreement permits the spread of hours to be altered to a greater extent than is provided for by the Modern Award and this may be a significant BOOT issue.

[16] Clause 27.7 appears to repeat a provision in clause 27.2 and clause 27.8 appears to repeat a provision contained in clause 27.2. In addition clause 27.8 provides for a spread of hours greater than the spread of hours in clause 27.2.

[17] Given the existence of clause 27.2, I am unsure why the provisions of clauses 27.7 and 27.8 are necessary.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR558920>