Nestle Australia Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2009] FWA 1378
•8 DECEMBER 2009
[2009] FWA 1378 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(AG2009/13669)
NESTLE AUSTRALIA LIMITED PAKENHAM FACTORY (PRODUCTION EMPLOYEES) ENTERPRISE AGREEMENT 2009
(ODN AG2009/13669) [AE872250]
Food, beverages and tobacco industry | |
COMMISSIONER WHELAN | MELBOURNE, 8 DECEMBER 2009 |
Application for approval of the Nestle Australia Ltd Pakenham Factory (Production Employees) Enterprise Agreement 2009.
[1] On 18 November 2009 I issued a decision approving the Nestle Australia Limited Pakenham Factory (Production Employees) Enterprise Agreement 2009. 1 The approval of the Agreement was opposed by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), which had been a bargaining representative for production employees at the site. At the time I indicated that I would provide reasons for my decision. I do so now.
Background
[2] The AMWU and the company (Nestle Australia Limited) had been involved in negotiations for a new Agreement since April 2007. In late August 2009 the union met with members and decided to conduct a secret ballot to determine if the employees were prepared to accept the company’s proposal or if they authorised the union to make an application for a protected action ballot. The result of that vote was that 50% of the members voted in favour of the company’s proposal and 50% voted in support of an application for a protected action ballot.
[3] The union made the application and on 8 September an order for a protected action ballot was granted.
[4] On the same day the company decided to submit the proposed Agreement to a vote of the employees. Mr Corbett, Victorian Employee Relations manager, drafted a memo for Mr Nooy, the Pakenham factory manager, to send out to employees advising them of the proposal to conduct a secret ballot on 17 and 18 September 2009 for employees to vote on the Agreement. The memo also advised employees of where copies of the proposed Agreement could be accessed and outlined the changes being proposed.
[5] Mr Corbett also emailed to the factory a copy of the proposed Agreement in its final form and a copy of the version of the Food Preservers Award, aspects of which were to be incorporated into the Agreement. Mr Corbett advised that 20 copies of these documents should be printed and suggested that Ms Tiley, the factory human resources manager, should check each day during the seven–day access period to ensure that copies of the Agreement, the memo and the Award were available in the designated areas.
[6] Mr Nooy’s evidence was that the memo was provided to each employee on 9 September 2009 with their payslips and a copy was posted on a notice board outside the canteen where notices such as these would normally be posted. Mr Nooy also instructed Ms Tiley to print copies of the Award and the proposed Agreement and provide four copies of each document to be placed (two in each room) in the Mini Business Unit rooms (MBUs). These rooms, one for the pizza area and one for the frozen goods, are where employee shift meetings are held. He also instructed Ms Tiley to provide 20 copies of each document for distribution within the canteen. A further 10 copies were to be kept in her room in case any employee wanted a copy.
[7] Three employees who were on maternity leave and two who were on sick leave were sent a copy of the memo by mail.
[8] Shortly before 9.00 p.m. on 8 September 2009, Ms Tiley sent an email to Mr Corbett and Mr Nooy confirming that the memos were ready to go with the payslips ‘tomorrow’, that the copies of the Agreement and the Award had been printed ready for distribution, that the memo had been put up on the notice board next to the canteen and on the doors of the MBUs and the warehouse and that copies of the memo had been sent to the employees who were off work at the time.
[9] On the morning of 9 September 2009, Ms Tiley put two copies of the Agreement and the Award in each of the MBU rooms and distributed 20 copies of each in the canteen. There was at least one copy of each document on each of the tables in the canteen and a stack on the table near the servery where other notices and books were displayed.
[10] On 10 September 2009 Mr Corbett sent a memo to Mr Nooy with an attachment which set out the date, time and locations for the voting to take place, with a request that this also be placed on the notice board.
[11] On the same day Mr Corbett spoke to Mr Nooy about a problem arising from the fact that copies of the Agreement were being taken from the canteen and only copies of the Award had been left on the tables. This was creating some confusion amongst the employees about what they were being asked to vote on. In an exchange of emails Mr Nooy suggested that they leave only one copy of the Award in the canteen but multiple copies of the Agreement. Mr Corbett agreed to this
[12] It was Mr Corbett’s evidence that despite this exchange an equal number of copies of the Award and the Agreement were made available in the canteen. Mr Corbett stated that it was the normal practice to provide copies of memos and documents to employees by placing them in the MBU rooms and the canteen. Mr Corbett was assured by the factory HR manager that all employees would be able to understand the documents.
[13] Mr Nooy stated that on the morning of 10 September 2009 he spoke to a night shift employee, Ms Beaumont, who was concerned that employees were confused about what the proposed conditions were as copies of the Agreement had been removed from the canteen and they were reading the Award in isolation from the proposed Agreement.
[14] Mr Nooy went into the canteen and found that there were a number of copies of the Award on the tables with no copies of the proposed Agreement although there were three copies of each document on the front table (near the servery). Mr Nooy picked up the six copies of the Award which were on the other tables and took them back to his office. He went to Ms Tiley’s office and got six copies of the Agreement and went back to the canteen and replenished the supply of Agreements and Awards.
[15] Mr Nooy stated that during the entire access period, to the best of his knowledge, there were copies of the proposed Agreement and the Award in the canteen and the MBU rooms. He visited the canteen on most days and each of the MBU rooms at least once. At all times there were copies of the documents there.
[16] Mr Nooy stated that there were a small number of employees from a non-English speaking background but he was not aware of any who could not speak or understand English.
[17] Mr Nooy agreed that on the morning of 10 September 2009 he spoke to Mr Daley (AMWU delegate). They had a conversation about Mr Daley’s awareness that conditions in the Agreement overrode those in the Award. The conversation was after he had replenished the supply of documents in the canteen. He did not discuss that issue with Mr Daley.
[18] Mr Nooy stated that despite his exchange with Mr Corbett he had thought better of the idea of removing copies of the Award from the canteen and decided that there should be an equal number of both documents available so there was no confusion. At the time he spoke to Mr Daley, there were nine copies of each of the Agreement and the Award in the canteen. Mr Nooy spoke to his management team and team leaders and asked them to talk to employees about any concerns about the relationship between the Agreement and the Award.
[19] Mr Nooy was asked if he was familiar with an employee called Mila Lavarovski and her command of English. He stated that he was aware of the employee but was not aware that she had any issues with English.
[20] Ms Tiley stated that she checked the canteen at least two or three times a day during the access period and there were copies of the Agreement and the Award.
[21] During the first two days she provided an additional 10 or 15 copies of the Agreement but after that she did not have to replace them. At least once a day she checked the MBU rooms. She noticed that one copy of the Agreement and the Award was gone from one of the MBU rooms but there was still one copy of each of the documents throughout the seven-day period. During the entire period no one asked her for a copy of either the Agreement or the Award.
[22] Ms Beaumont is a team co-ordinator on the night shift. She received a copy of the memo about the Agreement with her payslip on 9 September 2009. Some of the employees in her team were getting confused about the relationship between the Agreement and the Award so she approached Mr Nooy to see if the copies of the Award could be removed from the canteen. He said they could not do that but he would get out a memo to explain it or go the MBU meeting and let them know what it meant.
[23] After that conversation she went to the canteen with another employee, Ms Miller, to check if there were copies of both documents there. Mr Nooy went and got copies for them to distribute to the tables.
[24] Ms Beaumont stated that she went to the canteen three times a day. On the Saturday she cleaned the tables in the canteen and stacked all the papers and books on the front table. There were copies of both the Agreement and the Award there. Once a week she visited the frozen foods MBU and there were copies of the documents there. Mr Ramen Bakka, the production manager, also visited the MBU meetings to discuss the relationship between the Agreement and the Award.
[25] Mr Hale is the divisional secretary for the Food Division of the AMWU Victorian branch. He gave evidence that on 16 September 2009 he visited the Pakenham site to hold a mass meeting of members in the canteen. When he entered the canteen he went to the front table and picked up a copy of the proposed Agreement. There were about 20 documents in the pile. They were all copies of the Agreement. There were no other documents on the table. The employees at the meeting were sitting at tables in the canteen and there were no documents on those tables. Mr Hale did not visit the MBU rooms.
[26] Mr Daley is an AMWU delegate at Nestle Pakenham. He was absent from the site at an AMWU delegates meeting on 9 September 2009. He arrived at work at 5.00 a.m. on 10 September 2009 to start work and went to the canteen. He saw copies of the proposed Agreement and the Award on tables in the canteen. At 7.00 a.m. when he returned they were still there.
[27] At around 10.00 a.m. he had a conversation on the floor with Mr Nooy. Mr Nooy asked him if he was aware of any confusion about redundancy benefits. Mr Nooy told him that he was going to remove copies of the Award from the canteen to prevent people from being confused. At 11.00 a.m. when he went to the canteen he could only see copies of the Agreement in the canteen.
[28] Mr Daley saw the memo about the voting on the Agreement on the morning of 10 September 2009 when he arrived at work. Mr Daley stated that when he went to the canteen he did not look at what was on the front table near the servery. He agreed there could have been copies of the Award on that table. No one complained to him that they could not find a copy of the Award.
[29] Mr Daly also gave evidence that he had seen Ms Lazarovski getting her son who is also an employee at Nestle to read things to her in her own language.
[30] Ms James is also an AMWU delegate at Nestle Pakenham. She was also absent from the site at a delegates meeting on 9 September 2009. She returned to the site at 2.30 p.m. and went to the canteen where she saw copies of the Agreement and the Award scattered around on the tables. On Thursday 10 September 2009 at 9.00 a.m. she went to the canteen and noticed that there were only copies of the Agreement on the tables. She did not notice what was on the table near the servery.
[31] Ms James also stated that she saw copies of the Agreement in the frozen stores MBU room but that there was no copy of the Award. She did not visit the pizza MBU room.
[32] Ms James stated that between 9.00 a.m. on 10 September and 17 September 2009 she did not see any copies of the Award on the canteen tables. On 16 September 2009 when Mr Hale attended the site, she looked at the table near the servery and there was a pile of Agreements but no Awards.
[33] Ms James stated that she looked around the room on each occasion when she went to the canteen. Once a day she flicked through the documents on the servery table. She later changed this to say she was not physically going through the piles but the documents were all the same thickness.
Submissions
[34] Mr Selleck referred to the provisions of section 180(2) and to similar provisions in previous legislation. The previous legislation required the employer to take reasonable steps to ensure that eligible employees either had or had ready access to the Agreement. In section 180(2) the word ‘ready’ has been deleted. This needs to be borne in mind when looking at the cases before the Fair Work Act 2009 came into operation.
[35] Mr Selleck referred to two decisions under the Fair Work Act 2009 which had considered whether the employer had complied with section 180(2), Re: Alphington Aged Care 2 and Re: United Group Rail Services Limited.3 In the first case, copies of the Agreement were available at the reception desk and in the staff room and copies of the relevant Award were in folders in the staff room. Memos were posted on the staff room notice board and kept in the staff memo book. This was considered sufficient to meet the requirements of section 180(2).
[36] In the second case, notices were put on each notice board and copies of the Agreement emailed to employees. Where it was pointed out that a number of employees had not received the document a further 60 copies were distributed amongst the four lunch rooms.
[37] The Award was distributed to the consultative committee members and was available from the administration. Commissioner Cargill was not satisfied that the requirements of section 180(2) were met because of a lack of evidence that employees were reminded of the availability of the Award.
[38] Mr Selleck also referred to a number of cases prior to the Fair Work Act – Re Alcheringa Hostel Inc ANF and HSUA Certified Agreement 4; Re Coles Myer Pty Ltd5; Re Lone Star of Las Vegas and River Hero Pty Ltd6; Re Travelex Collective Agreement 20027; Re Coles Supermarkets Australia Pty Ltd New South Wales Bakery Employees Agreement 19978 and Re Western Australian Fire Services Certified Agreement.9 These decisions could either be distinguished or supported the company’s submission that reasonable steps were taken to provide employees with access to both the Agreement and the Award.
[39] The evidence in this case is that copies of the Agreement and the Award were effectively available in four locations at all times during the access period – the canteen, the MBU rooms and Ms Tiley’s office.
[40] The union submitted that there was in this case a dispute over the presence of the Award in the locations where the Agreement and the Award ought to have been accessible to employees during the access period. The memo circulated to employees advised them of the availability of the Agreement but does not refer to the Award. If Fair Work Australia finds that the Award was absent for any of the period, coupled with the fact that the memo does not mention the Award, there is a serious problem in meeting the requirements of section 180(2).
[41] Ms Boyle also referred to the Explanatory Memorandum to the Fair Work Act 2009 which suggests that a reasonable measure might be to post copies of the Agreement to employees on leave. The company sent them the memo but no copy of the Agreement.
[42] If there was a directive to either remove all copies of the Award or leave only one copy then it raises serious questions about whether Fair Work Australia could be satisfied that reasonable steps were taken to make the Award available and therefore if the requirements of section 180(2) are satisfied.
Conclusions
[43] Section 180(2) is a pre-approval requirement which must be met in order for Fair Work Australia to approve an enterprise agreement. It states:
(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.
[44] It is not disputed in this matter that the written text of the Agreement was made available to employees at four locations on the site and that they were advised of this fact via a memo provided to employees with their pay slip and displayed at locations on the site.
[45] The matter in dispute concerns the availability of the Award which meets the definitions of being ‘material incorporated by reference in the agreement’.
[46] I am satisfied that the employer took all reasonable steps to ensure that copies of both the Award and the Agreement were made available to employees in the canteen and the MBU rooms. Where Ms Tiley’s and Ms Beaumont’s evidence in relation to this conflicts with the evidence of Ms James, I prefer the evidence of Ms Tilley and Ms Beaumont.
[47] I accept that there may have been times when copies of the Award were not available in the canteen. I also accept Ms Tiley’s evidence that she checked the canteen at least two or three times daily and replenished the supply to documents there. Further I accept that at all times there was as least one copy of the Award in each of the two MBU rooms.
[48] In my view it is not necessary to establish that there were copies of the relevant documents accessible to employees in the canteen at all times during the access period if the employer can show that reasonable steps were taken to ensure this availability. In my view this was done.
[49] With respect to the employees who were absent on leave, I agree that ideally they should have been sent copies of the relevant documents. It was not unreasonable, however to send them the memo and inform them that they could contact Ms Tiley for copies of the Agreement. The evidence shows that none of them did so. Had they made contact with Ms Tiley and not been offered a copy of the Award that may have been a different matter.
[50] For these reasons, I am satisfied that the requirements of section 180(2) have been met. At the hearing Ms Boyle also raised the provisions of section 180(5). On the evidence before me I am not satisfied that this requirement was not met.
[51] These are my reasons for approving the Agreement in my decision of 18 November 2009. 10
COMMISSIONER
Appearances:
S. Selleck for Nestle Australia ltd.
B. Boyle for the AMWU.
Hearing details:
2009.
Melbourne:
November 11
1 2009 FWAA 1163.
2 Re: Alphington Aged Care and Sisters of St Joseph Health Care Services (Vic) t/as Mary Mackillop Aged Care[2009] FWA 301.
3 Re: United Group Rail Services Limited[2009] FWA 452.
4 Re Alcheringa Hostel Inc ANF and HSUA Certified Agreement 2002 [PR953139].
5 Re Coles Myer Pty Ltd [Print R3504].
6 Re Lone Star of Las Vegas and River Hero Pty Ltd [Print Q1593].
7 Re Travelex Collective Agreement 2002 [PR925709].
8 Re Coles Supermarkets Australia Pty Ltd New South Wales Bakery Employees Agreement 1997 [Print P5521].
9 Re Western Australian Fire Service Certified Agreement 2004 [PR949030].
10 [2009] FWA 1163.
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