Ostwald Bros Pty Ltd - [2012] FWA 6450

Note: An appeal pursuant to s.604 (C2012/5010) was lodged against this decision.

[2012] FWA 6450

FAIR WORK AUSTRALIA

DECISION

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

Ostwald Bros Pty Ltd
(AG2012/1335)

COMMISSIONER BOOTH

BRISBANE, 1 AUGUST 2012

Application for approval of Ostwald Bros. Civil Pty Ltd Collective Agreement 2012 - content of notice of employee representational rights - appointment of employee bargaining representatives - communications to employees during bargaining process.

[1] Ostwald Bros Pty Ltd (the Applicant) lodged an application for approval of the Ostwald Bros Civil Pty Ltd Collective Agreement 2012 on 21 April 2012. Shortly after lodgement, the Construction, Forestry, Mining and Energy Union (CFMEU) indicated it wished to be heard on the approval of the agreement. A conference was convened following the request to be heard on the approval. Written directions were issued directing the CFMEU and the Applicant to provide an outline of submissions. A hearing was conducted on 5 July 2012.

[2] The CFMEU submits that this agreement cannot be approved because the purported notice of representational rights omitted a prescribed clause and therefore does not satisfy s.174(3) of the Act. This particular provision requires a notice that informs employees of the circumstances in which the union would automatically be a bargaining representative. This is referred to in the heading of s.174(3) as Content of Notice-default bargaining representative. The clause in the notice is sometimes referred to as the default bargaining clause. The CFMEU argues that as a result of the omission no valid notice has been given and therefore there can be no genuine agreement and the agreement cannot be approved.

[3] Additionally the CFMEU raised arguments that the agreement was not made under s.182 that requires employees who will be covered by an agreement casting a valid vote to approve the agreement and that the agreement was not genuinely agreed to by the employees who will be covered by it.

[4] The Applicant rejects the grounds of objections raised by the CFMEU. It admits that the notice of representational rights did not include the default bargaining representative clause. It submits that the approach to be taken for approval of an agreement is whether the purpose of the Fair Work Act 2009 (the Act) about agreement approvals has been satisfied. 1

[5] For completeness, I note that there is a history of dispute among the parties, including contested representation rights. 2 Also, of the 159 employees who cast a valid vote, 86 employees voted to approve the agreement.

The law

[6] The Act establishes a process for making an enterprise agreement that requires Fair Work Australia (FWA) to approve an agreement if, among other things, “the agreement has been genuinely agreed to by the employees covered by the agreement” as provided for in s.186(2)(a), the relevant clause in this case.

[7] Section 186 of the FW Act provides as follows:

“186 When FWA must approve an enterprise agreement—general requirements

Basic rule

(1) If an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ostwald Bros Pty Ltd [2012] FWA 6450
Case: [2012] FWA 6450
Decision Date: 1 AUGUST 2012

CaseChat Overview and Summary

Ostwald Bros. Civil Pty Ltd sought approval for their 2012 Collective Agreement through the Fair Work Commission. The dispute centred on whether the company had adequately notified employees of their representational rights and facilitated the appointment of bargaining representatives. The case was heard in the Fair Work Commission, where it was necessary to determine whether the company's actions were compliant with the Fair Work Act 2009. The key issues were whether the notice provided to employees was sufficient and if the company had allowed for the proper appointment and communication with employee representatives during the bargaining process.

The Commission examined the content and delivery of the notice to employees regarding their representational rights. It considered whether the notice was clear and provided all necessary information, including the right to be represented by a union or an employee representative. The Commission also assessed whether the company had taken appropriate steps to ensure that employees could effectively exercise their right to be represented. The Court examined the communications between the company and the employees, and whether these were sufficient to enable the employees to appoint bargaining representatives effectively.

In its reasoning, the Fair Work Commission determined that the notice provided by Ostwald Bros. Civil Pty Ltd was not adequate as it failed to sufficiently inform employees about their rights and the process to appoint bargaining representatives. The Commission found that the company's communications with employees during the bargaining process were insufficient to allow for the proper appointment of representatives. Consequently, the Commission did not grant approval of the Collective Agreement. The company was ordered to improve its processes for notifying employees and facilitating the appointment of bargaining representatives before any further application could be made.

The Commission made clear orders for Ostwald Bros. Civil Pty Ltd to revise their notice to employees, ensuring it comprehensively covered the employees' rights and the procedure for appointing bargaining representatives. The company was also required to take affirmative steps to communicate with employees effectively throughout the bargaining process. These orders aimed to ensure compliance with the Fair Work Act 2009 and protect employees' rights in future negotiations.

Orders