National Vegetation

[2014] FWC 9170

[2014] FWC 9170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

National Vegetation
(AG2014/8006)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 22 DECEMBER 2014

Application for approval of the National Vegetation - Employee Agreement 2014 - application dismissed.

[1] On 28 October 2014, an application for approval of a single enterprise agreement was made by National Vegetation (“the employer”). The agreement was referred to as the National Vegetation - Employee Agreement 2014 (“the Agreement”).

[2] The application documents did not include a form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement. Following initial correspondence, the F17 declaration was provided by the employer on 21 November 2014.

[3] On the basis of the information provided in the F17 declaration, the application for approval appeared deficient in respect of the requirements of s.180 of the Fair Work Act 2009 (“the Act”).

[4] Section 180 of the Fair Work Act 2009 (“the Act”) provides 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.

[5] I directed email correspondence to the employer’s contact person on 28 November 2014 in the following terms:

Notice of Employee Representational Rights

The employer states that a Notice of Employee Representational Rights was provided to the employees on or before 14 September 2014. Please provide a copy of the Notice that was given.

Voting process

Related to the above, the declaration (at 2.8), states that voting for the Agreement commenced on 7 October and was completed on 14 October. That is, that the first day an employee could cast a vote on whether to approve the agreement was 7 October. Please provide additional information about this, as clarification will allow the Commission to properly assess the requirements of the Fair Work Act 2009 related to the 7 day access period, outlined in further detail below.

Pre-approval steps – 7 day access period

Section 181(1) of the Act states that an employer may request the employees employed at the time, who will be covered by a proposed enterprise agreement, to approve the agreement by voting for it. Section 180 of the Act sets out various pre-approval requirements that an employer is obliged to meet before an employer requests employees to approve the proposed agreement. Sections 180(2), 180(3) and 180(4) of the Act otherwise regulate the pre-approval steps and state:

“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).

....”

Section 180(2) of the Act requires the employer to do one of two things. The employer must take all reasonable steps to ensure that “during” the access period the relevant employees are “given” the stated materials, or it must ensure that the relevant employees have “access” to the stated material “throughout the access period”.

Section 180(3) of the Act provides that the employer must take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method that will be used “by the start of the access period”. Section 180(4) of the Act provides that the “access period” is a seven day period ending immediately before the voting commences.

The employer statutory declaration states that voting commenced on 7 October 2014, and therefore the access period is calculated by counting backwards (from the day “before”) to discern the date on which the access period starts.  The seven days “before” the voting process are: 6 October 2014, 5 October 2014, 4 October 2014, 3 October 2014, 2 October 2014, 1 October 2014 and 30 September 2014.

The difficulty that this presents for the application is that the requirements of s.180(3) of the Act must be carried out “by the start of” the access period. That is, the relevant employees must have been notified of the time and place of the vote and the voting method on 29 September 2014, or before. According to the Form F17 as completed by the Applicant, that information was provided on 7 October 2014, which was the day voting commenced (according to the statutory declaration).

The Applicant may wish to review its procedures as they were in this respect and confirm the facts in its declaration, or seek to file an amended declaration.

Please advise as soon as possible and no later than COB on 4 December 2014.

[6] On 30 November 2014, the employer’s contact person responded to this email, to the effect that it would review the procedures undertaken and advise the Commission. On 5 December, the employer’s contact person advised that she was having difficulty getting the required information.

[7] On 9 December 2014, I (through my associate) directed the following correspondence to the employer’s contact person:

Please provide the additional clarification of the dates and actions regarding the pre-approval steps as soon as possible. If no clarification is received by COB on 11 December 2014, the application will be determined on the basis of the material on the file (and may be dismissed).

In the event clarification is provided and Senior Deputy President Richards is satisfied with the clarification, His Honour will seek further information from the employer regarding the wages payable under the Agreement, in the form of a comparison between the Award and the Agreement (as foreshadowed in his email of 19 November 2014).

[8] The employer did not respond to the above deadline. On 16 December 2014 I (through my associate) directed the following correspondence to the employer’s contact person:

Senior Deputy President Richards notes that no clarification has been received. If nothing is received by 4pm on Thursday 18 December 2014, the application will be dismissed after that time.

If the employer wishes to file any material it should do so before then. Alternatively, the employer may choose to withdraw the current application.

[9] The employer has not provided any additional clarification by the time of this decision.

[10] On the basis of the information provided in the F17 declaration on the file, the pre-approval requirements set out in s.180(2) and s.180(3) of the Act were not complied with. As such, the application for approval of the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

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