PFD Food Services Pty Ltd T/A PFD Food Services
[2019] FWCA 6454
•4 OCTOBER 2019
| [2019] FWCA 6454 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.185—Enterprise agreement
PFD Food Services Pty Ltd T/A PFD Food Services
(AG2019/3053)
PFD Food Services Pty Ltd (Brisbane) Enterprise Agreement 2019
| Storage services | |
| Deputy President Masson | MELBOURNE, 4 OCTOBER 2019 |
Application for approval of the PFD Food Services Pty Ltd (Brisbane) Enterprise Agreement 2019.
Introduction and background
An application has been made for approval of an enterprise agreement known as the PFD Food Services Pty Ltd (Brisbane) Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by PFD Food Services Pty Ltd T/A PFD Food Services (the Applicant). The Agreement is a single enterprise agreement.
A notice of employee representational rights was provided to employees in the period 27 February 2019 to 1 March 2019 and the notice complied with the regulations. The Applicant states that employees were provided with access to the Agreement in the period from 29 July 2019 to 5 August 2019 and that information about the terms and the effects of the terms of the Agreement were provided in toolbox briefings and in information packs distributed in the period 26-29 July 2019.
The Applicant states that employees were notified of the time, place and method of voting via emails, employee meetings and in the information packs distributed to all employees in the period from 26-29 July 2019 and that voting occurred on 6 August 2019. A majority of those who voted approved the Agreement.[1]
The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant awards for the purpose of the better off overall test were the Road Transport and Distribution Award 2010 (the Transport Award)[2], the Storage Services and Wholesale Award 2010 (the Storage Award)[3] and the Clerks-Private Sector Award 2010 (the Clerks Award)[4].
The statutory declaration noted that some provisions in the Agreement were more beneficial than the Award or were not conferred by the Award. Less beneficial terms were also identified.
The Transport Workers Union of Australia (TWU) and the National Union of Workers (NUW) filed Form F18 statutory declarations in support of the application. In doing so the NUW raised the following concerns in their Form F18 submitted on 3 September 2019 where they stated as follows at question 7;
“1.Question 2.5 states that copies of the Agreement were made available to all employees from 30th July to 5th August 2019.
2.In or around the 31st July, the Company altered the Agreement without re-commencing the Access period. Accordingly, employees did not have access to the proposed agreement for a clear seven (7) days before voting.”
In reviewing the Agreement for approval, the Fair Work Commission (the Commission) identified several concerns in relation to the Agreement and supporting documentation. These included pre-approval requirements, National Employment Standards (NES) compliance and better off overall test (BOOT) assessment considerations. The Commission wrote to the Applicant on 3 September 2019 and identified several issues requiring a response.
Following receipt and consideration of the responses from the Applicant which included submissions and undertakings the Commission wrote to the parties on 13 September 2019, advising that it had formed a view that the Agreement was capable of approval subject to any further comments or concerns being raised by the bargaining representatives.
On 16 September 2019, correspondence was received from an employee bargaining representative raising additional concerns regarding the Agreement pre-approval process followed by the Applicant. The bargaining representative contended that the Agreement submitted to the Commission for approval contained an amendment that was not reflected in the Agreement circulated to employees in the period 26-29 July 2019. Furthermore, it was contended that the variation to the Agreement was neither circulated nor explained to employees prior to the conduct of the ballot.
On 17 September 2019 the Commission wrote to the parties seeking confirmation of the process followed by the Applicant in the circulation of the Agreement, and explanation of the terms and the effects of the terms of the Agreement to employees prior to the conduct of the ballot on 5 August 2019. The Applicant responded and provided a revised Form F17 detailing the process it followed. That explanation was contested by the employee bargaining representative that raised the original concern.
Because of the concerns raised by the bargaining representatives with respect to the pre-approval processes it was determined by the Commission that a hearing would be required. On 20 September 2019, directions were issued to the parties for the filing of submissions and materials and a hearing was listed for 1 October 2019.
The hearing
On 26 September 2019, the NUW filed submissions and one witness statement in opposition to approval of the Agreement. On 30 September 2019, the TWU filed submissions in support of approval of the Agreement. On 30 September 2019, the Applicant filed submissions and two witness statements in support of approval of the Agreement. No material was filed by employee bargaining representatives.
The hearing proceeded as scheduled on 1 October 2019. Mr W Cruise who is the Applicant’s National Employee Relations Manager, appeared for the Applicant. Mr M De Rooy appeared on behalf of the NUW and Ms M Cerato appeared for the TWU.
At the commencement of the hearing the NUW and the Applicant advised that they did not intend to call the witnesses who had provided witness statements. When asked by the Commission whether an adjournment was required to allow the witnesses to be called to give evidence, both the NUW and the Applicant confirmed that they would not seek to adduce evidence from their witnesses and were content for the Commission to proceed to determine the application, on the basis of submissions and other materials before the Commission.
The NUW and TWU also confirmed during the hearing that they did not challenge or oppose the various undertakings provided by the Applicant in response to the NES and BOOT concerns raised with the Applicant by the Commission.
I will now proceed to determine the application on the material before the Commission.
Agreement clause
At issue in the application for approval of the Agreement are the changes highlighted below that were made to clause 5.1(a)(i) of the Agreement following commencement of the access period. Clause 5.1(a) relevantly states as follows;
“5.1 Hours of Work
(a) Ordinary Hours
(i)Day Work – Drivers/Customer Service and Admin
Employees shall be employed on the basis that the ordinary day work hours will be 38 per week, to be worked continuously except for meal breaks, Monday to Friday, Tuesday to Saturday, or Sunday to Thursday between the hours of 5.00am and 7.30pm except as agreed with in accordance with sub-clause viii & vi below.
…………………
(vi) Drivers are only required during daywork ordinary hours between Monday and Saturday. In the event that shift work is required between Monday to Saturday, Drivers will receive the shift work allowances contained in clause 5.5 of the Agreement. Driver on a morning shift will only operate between Monday to Friday, and Drivers will not be required to commence earlier than 2.30am. A four (4) day working week for Drivers can only be introduced Monday to Friday.
…………………….
(viii) One off work on Saturdays involving those people not working a Tuesday to Saturday roster will be at penalty rates.
…………” (emphasis added)
Relevant legislation
Section 186 sets out amongst other things, that in order for an enterprise agreement, that is not a greenfield agreement to be approved, the Commission must be satisfied that employees have genuinely agreed to it. Section 186(2) relevantly provides as follows:
“186 When the FWC must approve an enterprise agreement—general requirements
……………………..
Requirements relating to the safety net etc.
(2) The FWC 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
………………….”
Section 188 of the Act sets out the matters of which the Commission must be satisfied in establishing whether employees have genuinely agreed to an enterprise agreement and relevantly states as follows;
“188 When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC 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.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a)the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.
As set out in s.188(1)(a)(i), the Commission must be satisfied amongst other things that an employer has complied with the requirements of ss180(2),(3) & (5) which detail certain steps that must be taken by the employer to ensure that, prior to a ballot for an agreement, employees are properly informed as to the agreement and are notified as to the ballot process. The Commission must be satisfied as to the employer having taken all reasonable steps prior to the conduct of a ballot. The relevant provisions are:
“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.
……………………”
Submissions of the parties
NUW submissions
The NUW submit that clause 5.1(a)(i) was amended after the commencement of the access period. The amendment involved insertion of ‘& vi below’ at the end of the sub-clause. On becoming aware of the change to the Agreement that was initially circulated to employees in the period 26-29 July 2019, Mr Thomas Rossiter of the NUW sent an email to Mr Cruise on 12 August 2019 in the following terms;
“….NUW further noted unilateral changes to the final draft Agreement without negotiation or providing explanation during the access period.
…………………….Can PFD confirm there were no changes made to the proposed draft EBA during the access period.”[5]
According to the NUW Mr Cruise then responded to Mr Rossiter’s email on 13 August 2019 in the following terms;
“Hi Tom
I can confirm that the Agreement that was provided to all employees at the commencement of the Access Period was not amended or changed during this period. This is the final version that has been provided to you.
…………..”[6]
The NUW referred to a subsequent email sent by Mr Cruise to Mr Rossiter on 20 August 2019 in which Mr Cruise sought to correct his advice provided in his email of 13 August 2019. Mr Cruise advised as follows;
“Hi Tom
It was brought to our attention by one of the delegates on site of a typo in clause 5.1(a)(i) of the EBA. This was rectified first thing on the morning of 31st July by adding the words “& vi below.” This change was done in consultation with delegates that were on site at the time.
We do not believe that this amendment altered the intent or wording of the Agreement and we were still able to provide employees with 7 days to fully access the Agreement.”
In a further email sent to Mr Cruise on 20 August 2019, Mr Rossiter stated that the agreement had been changed and that employees did not have the full access period within which to consider the Agreement. Mr Rossiter pressed Mr Cruise to put the final agreement out for the full access period and re-do the vote.[7] Mr Cruise responded on 17 September 2019 declining to put the Agreement back out for another vote.[8]
The NUW variously submit that the above-referred chronology of events reveals the following;
·The NUW raised their concerns with the Applicant;
·The concern raised by the NUW is not a minor procedural error;
·The Applicant failed to comply with the requirements of s.180 in that they did not take all reasonable steps to ensure that employees had access to the written text of Agreement throughout the access period;
·Furthermore, the Applicant did not take reasonable steps to ensure that the changed terms of the Agreement, and the effect of those terms, were explained to all relevant employees and were understood by those relevant employees;
·In the Applicant not complying with s. 180(2) & (5) the Commission cannot be satisfied that the employees genuinely agreed to the Agreement as required by s. 188(1); and
·The failure to allow employees 7 clear days to consider the changes to the Agreement does not constitute a minor procedural or technical error of the kind envisaged under s. 188(2) of the Act.
TWU submissions
The TWU submit that the matter concerns a minor amendment made to clause 5.1(a)(i) during the access period. Clause 5.1(a)(i) deals with hours of work for dayworkers engaged in the Driver, Customer Service and Admin areas and prescribes the span of days on which ordinary hours of work may be rostered. Clause 5.1(a)(vi) prescribes specific entitlements of drivers and provides for a narrower span of days (then 5.1(a)(i)) on which drivers may be rostered to worked ordinary hours. It also limits the span of days on which a 4 day working week may be introduced for Drivers.
The TWU submit that it was always the intent of the parties that the restrictions contained in sub-clause 5.1(a)(vi) needed to be applied in conjunction with sub-clause 5.1(a)(i), and that the amendment does not change the meaning or effect of the Agreement. According to the TWU the amendment simply makes clear how the sub-clauses interact and was made to avoid ambiguity or uncertainty and thereby reduce the risk of future disputation over the clauses.
The TWU submit that the amendment falls squarely within s. 188(2) of the Act as it was a minor technical amendment which does not disadvantage any employees. The TWU further submits there would be no useful purpose in the Commission dismissing the application in the circumstances.
Applicant submissions
The Applicant submits that on 31 July 2019 a TWU delegate approached his Manager and raised a concern regarding the wording of clause 5.1(a)(i) of the Agreement that had been circulated to employees in the information pack in the period 26-29 July 2019. The wording of the original sub-clause 5.1(a)(i) only referred to sub-clause (viii) and did not include reference to sub-clause (vi). In consultation with the TWU delegate the Agreement was subsequently amended by the Applicant and recirculated to employees.
According to the Applicant’s revised Form F17 provided to the Commission on 17 September 2019, on being alerted by the TWU delegate of the Agreement drafting issue, the Applicant amended the Agreement by adding reference to sub-clause (vi) in sub-clause 5.1(a)(i). The Applicant states that it then reissued full copies of the Agreement to all employees on the morning of 31 July 2019 and advised employees to disregard the copy initially provided in the information pack. According to the Form F17, the change was also communicated to all employees during subsequent toolbox meetings on that morning or soon thereafter.
The Applicant submits that the change made to the Agreement had no impact on the entitlements of employees and only clarified the interaction of the relevant sub-clauses in clause 5.1. Furthermore, the changes made only had relevance to Drivers and not to other employees employed in its Brisbane operations.
The Applicant concedes that the final version of the Agreement, inclusive of the amendment to sub-clause 5.1(a)(i), was not made available to employees until 31 July 2019, but submits that the Commission should exercise its discretion under s. 188(2) and find that the Agreement was genuinely agreed.
Consideration
It must be said that the Applicant’s response to the NUW’s initial query over changes to the Agreement were contradicted by its subsequent correspondence. Nevertheless, I am satisfied based on the Applicant’s revised Form F17, which I accept, that employees only had access to a copy of the written text of the final Agreement document on and from 31 July 2019 which was only for a period of 5 clear days prior to the ballot. It follows that the Applicant has failed to comply with the requirements of s. 180(2) of the Act, that being to take all reasonable steps to ensure that the written text of the Agreement was available to employees throughout the access period. On that basis I am not satisfied that the requirements of s. 188(1) are met.
The Applicant’s failure to comply with the requirements of s 180(2) and consequently s. 188(1) of the Act does not however mean that the Commission cannot be satisfied that the Agreement was genuinely agreed. I now turn to consider whether the failure to make the written text of the Agreement available to employees throughout the access period constitutes a minor technical error of the kind envisaged by s. 188(2).
In considering whether the requirements of s. 188(2) are met, it is necessary for me to briefly deal with the relevant Agreement provisions at issue in the matter before me and in particular sub-clause 5.1(a)(i) and the effect of the amendment that was made to that sub-clause on 31 July 2019.
Sub-clause 5.1(a)(i) only applies to Drivers/Customer Service and Admin staff and sets out the span of days of the week on which ordinary hours of work may be rostered for day workers working in those areas. The clause does not apply to employees engaged in the Warehouse as sub-clause 5.1(a)(ii) deals with that group of employees.
Prior to the change made on 31 July 2019, sub-clause 5.1(a)(i) only referred to sub-clause (viii) as being the exception to the general day work hours of work provisions for Drivers/Customer Service and Admin employees. Sub-clause (viii) provides for penalty payments to be made in circumstances where an employee who is not rostered on a Tuesday to Saturday roster is required to work a ‘one off’ Saturday.
Notwithstanding the absence of a reference to sub-clause (vi) in sub-clause (i) in the unamended Agreement version, it is clear enough that sub-clause (vi) operates to narrow the span of days on which ordinary hours of work for Drivers on day work may be rostered such that they cannot be rostered to work ordinary hours on a Sunday. Nor can Drivers be rostered to work a 4 day week other than within the span of Monday to Friday. Sub-clause (vi) has the clear effect of reading down (or narrowing) the span of days provided for in sub-clause (i). In my view the clause was clear without the subsequent amendment made.
The amendment subsequently made on 31 July 2019 does no more than confirm the proper interaction of sub-clause (i) and (vi) and in my view does not alter the effect of the terms of the Agreement or impact the entitlements of any employees.
Having regard to the above, the changes made to the Agreement were of no consequence in my view. In these circumstances I am not persuaded that the reduced period within which the written text of the Agreement was available to employees could be said to have been likely to disadvantage employees. My view is fortified by the submissions of the TWU which was the bargaining representative for the cohort of employees to which the amended sub-clause was relevant. I note at this point that the NUW did not present a persuasive argument that any of the classes of employees that they were entitled to represent were in fact impacted at all by the relevant sub-clause.
As regards the explanation of the terms of the Agreement required by s. 180(5) of the Act, I am satisfied on the basis of the Applicant’s revised Form F17 that the Applicant took all reasonable steps to explain the terms and the effect of the terms of the Agreement to employees. This occurred primarily in the period prior to the commencement of the access period by way of toolbox meetings and the information pack circulated in the period 26-29 July 2019. I am further satisfied that the change that was made to the sub-clause 5.1(a)(i) on 31 July 2019 was drawn to the attention of employees and given that the change did not alter the effect of the terms of the Agreement, I am satisfied that the requirements of 180(5) of the Act were met.
I note that employees were provided with the voting information in the period 26-29 July 2019 and that the vote was conducted on the 6 August 2019, that date being a clear 7 days after notification of the ballot details. Having received a copy of the amended Agreement on 31 July 2019, it is clear that employees only had access to the written text of the Agreement for a period of 5 days prior to the conduct of the ballot rather than throughout the access period as prescribed by the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[9], this constitutes a minor procedural error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.
Conclusion
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Transport Workers Union (TWU) and the National Union of Workers (NUW) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 October 2019. The nominal expiry date of the Agreement is 30 June 2022.
DEPUTY PRESIDENT
Annexure A
[1] Section 180 of the Act
[2] MA000038
[3] MA000084
[4] MA000002
[5] Email from Mr Thomas Rossiter to Mr Warren Cruise dated 12 August 2019
[6] Email from Mr Warren Cruise to Mr Thomas Rossiter dated 13 August 2019
[7] Email from Mr Thomas Rossiter to Mr Warren Cruise dated 20 August 2019
[8] Email from Mr Warren Cruise to Ms Imogen Beynon dated 17 September 2019
[9] [2018] FWCFB 245
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