Noel Symons
[2010] FWA 3467
•30 APRIL 2010
[2010] FWA 3467 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Noel Symons
(AG2010/3729)
COMMISSIONER LARKIN | SYDNEY, 30 APRIL 2010 |
Application for the approval of the Consec Security Pty Ltd Collective Agreement for RMV Defence Sites 2009/2012 – ss.173(3) notice to be provided within 14 days after the notification time – s.176 and s.178 appointment of bargaining representative – s.180(5)(a) explanation of the terms and, effect of those terms, of the agreement – s.186, s.187 and s.188 genuinely agree – good faith bargaining – application refused.
[1] An application has been made for approval of an enterprise agreement known as the Consec Security Collective Agreement for RMV Defence Sites 2009/2012 (the agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Mr Noel J Symons, the employee bargaining representative. Mr Symons is a security guard, level 3, employed by the employer. The employer is Consec Security Pty Ltd. The employer declaration, in support of the application, was made by Mr Hilf, Security Coordinator – Defence. The agreement is a single-enterprise agreement.
[2] The agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] The agreement is to operate for a period of three years, and, according to the employer declaration, covers employees who work on Riverina Murray Valley Defence Regions Military bases located in New South Wales and Victoria at Albury, Wodonga and Wagga Wagga. The work preformed by employees is security duties. There are 73 employees covered by the agreement of which 52 voted and 51 approved the agreement.
[4] The application was heard on 8 March 2010. Mr Hilf appeared on behalf of Consec Security Pty Ltd. A notice of listing had been forwarded to the applicant, Mr Symons. Mr Symons did not appear in the proceedings.
[5] During proceedings I put a number of questions to Mr Hilf in relation to the application and in relation to the agreement. In summary, those questions concerned:
• The written authorisations appointing Mr Symons as the employees’ bargaining representative.
• Annual leave provisions for shiftworkers.
• The terms of the dispute settling provisions.
• Composite rate, inclusive of allowances, penalties and loadings, public holidays and 32 hours overtime across an eight week roster cycle.
• Voluntary overtime (hours worked in excess of approximately 43 hours) paid at time and one quarter.
[6] At the conclusion of the hearing Mr Hilf was provided with an opportunity to file written submissions and other material in support of the application for approval by 31 March 2010. On 24 March 2010 Mr Hilf sought an extension of time in which to lodge submissions. I decided to grant Mr Hilf’s request and extended the time for the filing of material to Monday 19 April 2010.
[7] On 30 March 2010 the following email was received from Mr Noel Symons, the applicant in this matter.
“In my position of "Employee Bargaining Representative" for all Security Officers employed by Consec Security Pty.Ltd in the Albury & Wagga Wagga areas, I wish to express our concerns on the application before you.
The current work place agreement governing our group was originally planned to cease 30/3/2008. Since that date Consec have been processing the new collective agreement.
The introduction date of a collective agreement has no urgency for Consec, however many employees are very keen to see the process completed for the following reasons.
1. Casual employees are not being considered for permanent appointments until after the new agreement is approved. Several employees are very concerned about their financial planning.
2. Almost all employees are keen to transfer from the Consec nominated Superannuation Fund.
3. Current permanent employees are not paid additional dollars for overtime but will be paid 25% extra under the new agreement.
It is with these concerns in mind that I write to you in the hope that our agreement can be processed at the earliest possible time.
Noel J. Symons”
[8] On 31 March 2010 correspondence was forwarded to Mr Symons outlining the process in relation to the application to date and inviting Mr Symons to file any material he felt was relevant to the application. Transcript of the proceedings on 8 March 2010 was enclosed.
[9] On 19 April 2010 Mr Hilf filed submissions. Those submissions addressed annual leave provisions for shiftworkers and the composite rate of pay. The other issues raised with Mr Hilf during proceedings on 8 March 2010 were not addressed.
[10] On 22 April 2010 Mr Symons forwarded to my associate a copy of a document that appeared to represent the vote taken of employees in support of the agreement. The hand written note on this document indicated that 51 of the 73 employees had agreed to the agreement at 9.36am on 22 December 2009. The last document provided by Mr Symons was a copy of an email from Mr Hilf to a number of people, which I presume held managerial positions in the organisation, dated 18 September 2009, with the subject matter being Employee Bargaining Representative. That email stated:
“Good afternoon all,
Please be advised that we now have all the ballot forms back and counted with the following results for the two candidates.
Ron Neilson, 42% of the vote
Noel Symons, 58% of the vote.
Therefore Noel Symons is elected as your bargaining representative.
We should have the updated version of our Agreement that meets the new requirements back shortly and be able to present it to all employees to continue with the process.”
[11] Further information was provided by Mr Symons in an email to my Chambers, dated 22 April 2010, copied to Mr Hilf, as follows:
“Following the receipt of correspondence from Andrea Ho dated 31st March, 2010 and a copy of the Transcript from the meeting 8th March, 2010 we feel compelled to accept your offer to forward further material in relation to our application.
BACKGROUND DATES AND INFORMATION
1. Employees first sited proposed C.A. 10/03/09
2. 19th March, 2009, four employees visited Mr. Hilf, resulting in minor changes to C.A.
3. Approximately July, 2008, about 23 employees in Albury joined the LHMU Union, Victoria.
4. By the end of April 2009 most employees had abandoned their membership as we had not received any visitations from the union and all felt that 23 people in Albury were of little interest to them.
5. 18th September, 2009 Noel Symons was elected bargaining representative.
6. March 3rd, 2010 I contacted Mr.Hilf to offer joining him at the C.A. hearing 8th March, 2010. Mr.Hilf said it was not necessary for me to attend.
7.14th April, 2010 Mr.Hilf telephoned me for the first time since 3rd March, 2010 to discuss various C.A. matters.
The employees would like to make it clear that the major reason most employees joined the union was to have a second opinion on the two matters the Commissioner has queried with Mr.Hilf. i.e. quantity of Annual Leave and the hourly rate paid.
Until the submission to you 19th April, 2010 the breakdown of employees (sic) dollar hourly rate had not been sited by employees.
In October 2009 Mr.Hilf advised me that he was in consultation with the union and that they had passed the C.A. and it had passed the non disadvantaged test.
It is noted from the Transcript 8th March, 2010 that no mention is made of any dollar penalty allowed for all employees to arrive a minimum of 5 minutes early for change over of shifts.
I trust this background information will be of assistance to make your determination and enable Consec Pty.Ltd. and employees to mutually accept the umpires decision.
Yours faithfully,
NOEL J. SYMONS”
[12] The above information provided by Mr Symons caused me great concern, therefore, on 22 April 2010, I instructed my associate to forward the following email to Mr Hilf:
“Dear Mr Hilf
Further to my earlier emails, the Commissioner has instructed me to ask you to forward to Chambers, as a matter of priority:
1. Any written notification from an employee authorising a representative to bargain on his or her behalf;
2. A copy of the notice of employee representational rights stated in Form F17 to have been distributed to employees on 2 October 2009; and
3. The date on which the employer either agreed to bargain, or initiated bargaining, for the agreement.
Please do not hesitate to contact me if you have any queries”
[13] On 27 April 2010 Mr Hilf replied. In his email Mr Hilf advised that he had attached the documentation as requested and “I hope it covers everything you require and please do not hesitate to contact me if I have missed anything or there is anything else you require”. Mr Hilf had attached to his email a very large volume of material comprising copies of emails, forms and previous updated versions of the agreement. The material did not include a copy of an instrument of appointment appointing Mr Symons as the bargaining representative for a proposed enterprise agreement. I will not address all the material filed. I will, however, refer to some of the material as relevant for the purpose of this decision.
[14] The employer’s declaration, Form F17, stated that the agreement had been made on 22 December 2009 (s.182), the employer had first requested employees approve the agreement on 1 December 2009 (s.181) and that the last notice to employees of their representational rights was provided on 2 October 2009 (ss.173(1)).
[15] It appears from the documents filed by Mr Hilf that an agreement had been lodged with the Workplace Authority in April 2009 and due to some problem the employer had been advised to re-lodge. On 11 August 2009 the employer distributed a memorandum to all employees in relation to the status of the agreement and outlined advice that, it was said, had been received from Fair Work Australia in relation to the process in lodging the agreement. I will not comment upon what that advice involved, however, it is of some concern. In all probability Mr Hilf may have misunderstood the discussion had with Fair Work Australia. For present purposes it is not relevant, however, in any future process concerning an agreement it would be relevant as that advice, if given, is not correct.
[16] On 13 August 2009 Mr Hilf forwarded an email to, who I assume to be, team leaders/managers asking them to distribute a form, “Employee Representative Nomination Form”, to all employees. The form was for the purpose of any interested employee to nominate for the position of an employee bargaining representative.
[17] On 2 September 2009 Mr Hilf advised team leaders/managers that only two employees had nominated for the above position, being Mr Symons and a Mr Neilson. Mr Hilf further advised that “unless you know of any other persons who wish to nominate themselves, I will be sending out the voting forms at the end of this week”.These voting forms were distributed to employees on approximately 8 September 2009. The result of the vote for the employee bargaining representative was that Mr Symons received the majority of the votes.
[18] On 18 September 2009 Mr Hilf advised employees of the outcome and stated:
“Therefore Noel Symons is elected as your bargaining representative.
We should have the updated version of our Agreement that meets the new requirements back shortly and be able to present it to all employees to continue with the process.”
[19] On 3 September 2009 the Liquor, Hospitality and Miscellaneous Union (LHMU), forwarded an email to Mr Hilf as follows:
“I understand that there has (sic) been some issues with the lodgement of the agreement as negotiated in April and that an (sic) new agreement will now need to be made and lodged with fair work (sic) Australia.
Can you let me know what if any progress you have made with this, otherwise I can update the current agreement to make it compliant and work with you to ensure that it is lodged properly.
If you have commenced re drafting I would appreciate it if you could send me the draft so I can review it on behalf of our members.”
[20] During September 2009 Mr Hilf and the LHMU exchanged emails in relation to the agreement. On 1 October 2009 the LHMU forwarded to Mr Hilf a notice of employee representative rights and advised that the notice must be distributed immediately. The LHMU correspondence also addressed the process to be followed and made some further comments in relation to the agreement.
[21] The LHMU had not been provided with a notice of listing of the application as there was no mention of any union involvement in the application nor had the union contacted my Chambers in relation to the application.
[22] On 2 October 2009 Mr Hilf forwarded to team leaders/managers the notice of employee representative rights advising that the notice was to be distributed to employees and placed on notice boards. In his email Mr Hilf stated that “This is the first step of the new workplace agreement and after employees have had this document for 14 days the updated agreement can then be distributed to all for perusal. Employees must then have the new agreement for a minimum of 7 days before they can vote on it. Obviously we have saved some time already by employees nominating and electing your representative”.
[23] On 21 October 2009 Mr Hilf forwarded an email to team leaders/managers advising them to distribute the new collective agreement to all employees and that a vote could not be taken for at least seven days. Further, employees were to carefully read the document and any queries or concerns were to be addressed by Mr Symons “your bargaining representative”.
[24] It appears that Mr Symons did raise some concerns with the agreement. On 21 November 2009 a revised version of the agreement was forwarded to employees, via their team leaders/managers, by Mr Hilf
[25] The Act at Part 2-4 sets out a number of requirements for the approval of an enterprise agreement. Section 173, where relevant to this matter, states:
“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.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
…
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.”
[26] The legislation requires an employer to 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 and is employed at the notification time for the agreement. In this matter the notification time is the time when the employer agrees to bargain, or initiates bargaining, for the agreement.
[27] On the material before me it appears that the bargaining process for an agreement commenced in March/April 2009. As the agreement that was lodged with the Workplace Authority was not accepted the employer recommenced the bargaining process. With the commencement of the Fair Work Act 2009, on 1 July 2009, the employer initiated bargaining on 11 August 2009. 2 11 August 2009 is the notification time under ss.173(2) of the Act. The notice to employees of their right to be represented by a bargaining representative was not provided to employees until 2 October 2009. Subsection 173(3) requires the notice to be given not later than 14 days after the notification time for the agreement.
[28] Sections 176 and 178 of the Act set out certain requirements associated with the appointment of bargaining representatives. For the purpose of this matter, the sections state:
“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
…
Employee may appoint himself or herself
(4) To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).
178 Appointment of bargaining representatives—other matters
When appointment of a bargaining representative comes into force
(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
Copies of instruments of appointment must be given
(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:
(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and
…”
[29] Relevant to the matter before me is that the legislation requires that a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement. A bargaining representative is not elected by a majority of employees. Further, an employee, who will be covered by the agreement, may choose to appoint himself or herself as his or her bargaining representative for the agreement.
[30] The information provided to employees on this point is very misleading. On 18 September 2009 employees were advised that Mr Symons, due to the election process embarked upon, was their bargaining representative. There was no instrument of appointment given to the employer by any employee who would be covered by the agreement appointing Mr Symons as a bargaining representative. The notice provided to employees on 2 October 2009 complied with the requirements of the Act in form and content, however, it was provided to employees after Mr Symons had been elected as the employees’ bargaining representative and approximately two months after the employer had initiated bargaining. The notice was provided to employees after they had been advised of Mr Symons’ election as their bargaining representative. In my view, the notice served no purpose except as evidence of compliance with the legislation.
[31] There are a number of other concerns associated with the pre-approval requirements pursuant to s.180 of the Act in relation to employees being provided with other material incorporated by reference in the agreement, during the access period. The agreement provides that the reference instruments formed the basis of the agreement and also makes reference to the application of the National Employment Standards in relation to long service leave. The employer’s declaration states that employees were provided with a copy of the agreement, which I accept, and other documents. It is not clear what other documents were provided to employees.
[32] Sections 186, 187 and 188 of the Act, inter alia,state:
“186 When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
…
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
…
187 When FWA must approve an enterprise agreement—additional requirements
Additional requirements
(1) This section sets out additional requirements that must be met before FWA approves an enterprise agreement under section 186.
Requirement that approval not be inconsistent with good faith bargaining etc.
(2) FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.
…
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.”
[33] I am not satisfied that the employees who will be covered by the agreement have genuinely agreed to be covered by the agreement as required by ss.186(2) of the Act. I am not satisfied that the approval of the agreement would not be inconsistent with or undermine good faith bargaining. This is not a reflection upon Mr Symons. I am persuaded on the material before me that Mr Symons, believing that he was the elected bargaining representative, acted in good faith. The undermining of the good faith bargaining principle is reflected in the process undertaken by the employer, as outlined previously in this decision. I am not persuaded that Mr Hilf, as representing the employer, consciously or deliberately acted contrary to the requirements of the legislation. In my opinion, Mr Hilf acted upon advice he received and upon his interpretation of that advice.
[34] The requirements of ss.173(3) of the Act have not been complied with. The notice of representative rights was not provided to employees within 14 days after the notification time for the agreement.
[35] It is possible, albeit it is not clear on the material that the pre-approval requirements pursuant to ss.180(2) of the Act, in relation to employees being provided with other material incorporated by reference in the agreement during the access period, may not have been complied with.
[36] On the material before me it appears that the requirements of ss.180(5)(a) have not been complied with by the employer. The requirement is that the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees. Mr Symons submitted, which the employer has not disputed, that the breakdown of an employee’s hourly dollar rate had not been sighted by employees. As I have stated previously in this decision, the rate of pay is a composite rate of pay. It appears that the terms and, the effect of those terms, in the agreement have not been explained to the employees.
[37] Given the above issues, I will not consider and determine if the agreement satisfies the requirements of ss.186(2)(d) (no-disadvantage test) or ss.186(6) (terms of the dispute settling provisions) of the Act. As stated previously in this decision Mr Hilf did not address all the concerns I had put to him during the proceedings on 8 March 2010. Mr Hilf addressed some concerns, albeit I am not persuaded by those submissions, other issues raised were not addressed. It is possible that the concerns I expressed may be accommodated by undertakings.
[38] I note Mr Symon’s concern on behalf of employees, as advised in his submissions outlined above, in relation to the approval of a new agreement. I can only suggest that the parties commence the bargaining process again in accordance with the requirements of the Fair Work Act 2009, having regard to this decision and the issues I have raised. Particular regard should be had to the good faith bargaining sections of the Act.
[39] As I am not satisfied that a number of statutory requirements for approval of the agreement have been met, the application for approval is refused.
COMMISSIONER
Appearances:
Mr N Hilf, for Consec Security Pty Ltd.
Hearing details:
Sydney.
2010:
March, 8.
Final written submissions:
2010:
April, 28.
1 Item 2, Part 1, of Schedule 2.
2 Mr Hilf’s email, dated 11 August 2009, to team leaders/managers with the memorandum to employees.
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