Porter Plant Wet Hire Pty Ltd

[2011] FWA 3349

[2011] FWA 3349

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Porter Plant Wet Hire Pty Ltd
(AG2011/925)

COMMISSIONER RYAN MELBOURNE, 30 JUNE 2011

Porter Plant Wet Hire Employee Collective Agreement 2011-2013.

[1] An application for approval of the Porter Plant Wet Hire Employee Collective Agreement 2011-2013 (the agreement) was filed with Fair Work Australia on 3 May 2011 pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The application was made by Porter Plant Wet Hire Pty Ltd (the employer).

[2] By letter to the employer dated 17 May 2011 I raised concerns in relation to the application and pre-approval process together with the content of the agreement. In that letter I required the applicant to provide further material, submissions and any undertakings by 27 May 2011.

[3] The employer responded to my letter on 26 May 2011. The response included the following:

• a copy of a memorandum to employees dated 1 October 2010 advising of the commencement of bargaining (1 October memo);



• the accompanying ‘Election for Bargaining Representation’ form (election form);



• a letter to employees dated 4 April 2011 from Blair Thompson advising of the access period and vote on the agreement (4 April letter);



• a PowerPoint presentation to employees on the steps involved in the making of an agreement (the presentation);



• undertakings.

Appointment of bargaining representatives

[4] In relation to the 1 October memo, I note that employees were advised that ‘The purpose of the meeting is to notify all employees of the bargaining process, and also to inform employees of the process of electing employee bargaining representatives.’ and that ‘In this envelope you will also receive a voting form to elect employee representatives.’ (underlining added)

[5] In relation to the presentation referred to above, I note that this PowerPoint presentation depicted the agreement making process in six steps, the first step being to ‘Elect Bargaining Representatives’.

[6] I consider that the employees were misled into believing that the bargaining representation process involved the ‘election’ of bargaining representatives rather than the ‘appointment’ of bargaining representatives and further that the process was to be driven by the employer, not by the employees themselves. This process which the employer adopted and communicated to its employees is at odds with the requirements the Act.

[7] The agreement is signed by Mr Greg Laird in the capacity of bargaining representative for employees. Mr Laird’s details are inserted in response to question 6.2 in the Form F16, despite the employer answering ‘N/A’ to the question of how many instruments of appointment signed by employees were given to the employer.

[8] By email on 8 June 2011 the employer was requested to “provide a copy of any instruments of appointment provided by employees to Porter Industries which illustrate the appointment by employee/s of Mr Greg Laird as an employee bargaining representative.”

[9] The employer subsequently filed with FWA seven election forms signed by seven employees, the form of which was:

“I ______________ (name) have been provided with information about my representational rights and elect for the following employee/s to act as a bargaining representative on my behalf for the employee collective negotiations:

1. ............................

2. .............................

3. .............................

4. ..............................

Signature: ...................................... Date ................

Once signed please return to:

Blair Thompson

Human Resources Department

Porter Industries”

[10] In each instance the employee ‘elected’ two people to be their bargaining representatives. Each of the employees had Greg Laird as their first choice and then one other person as their second. So in total seven people were nominated by employees to act as bargaining representatives. However, it appears that the employer treated the election forms as a form of preferential voting, the result of which was that Greg Laird was treated by the employer as being the only employee bargaining representative.

[11] It is evident from both the election forms provided by employees to the employer and from the other communications of the employer, which I describe in paragraphs [4] and [5] above, that the rights of employees to appoint a bargaining representative have been qualified by the employer.

[12] Sections 176 and 178 of the Act provide:

“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

…”

Voting process

[13] The 4 April letter read, in part:

“The vote on the proposed agreement will take place from Friday 22nd April to Friday 29th April. Votes will open 7am on the Friday and will close 5pm on the following Friday. The vote will be via the form of a ballot, and the ballot box will be located at the Cambrian Hill depot in the lunch room. A voting form has been provided to you with this letter, however additional copies may be obtained from the HR department. All votes are confidential with only the HR department able to view the votes. If you will be absent and unable to vote on these given days, please contact HR to arrange an alternative.”

[14] I have considered the procedure implemented by the employer in light of the requirements of the FW Act.

[15] Sections 180, 181 and 182 of the FW Act deal with the making of enterprise agreements. These sections provide 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.

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi-enterprise agreement that is not a greenfields agreement

(2) If:

(a) a proposed enterprise agreement is a multi-enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(c) those employees have voted on whether or not to approve the agreement; and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).”

[16] The language of these three sections of the FW Act leads me to conclude that the applicant has not complied with the requirements of the FW Act and that the enterprise agreement has not been made in accordance with the provisions of the FW Act.

[17] Section180(1) provides that an employer cannot request employees to vote on an enterprise agreement until the employer has undertaken three actions, namely:

• giving a copy of the enterprise agreement and any material incorporated into the agreement to employees (s.180(2)(a)),



• providing access to a copy of the agreement and any material incorporated into the agreement for a defined period (s.180(2)(b)), and,



• notifying employees of the time and place of the vote and voting method that will be used (s.180)(3)).

[18] Each of these three actions has to occur within a set time. The requirement specified in s.180(2)(a) must occur sometime during the “access period”. The requirement specified in s.180(2)(b) must occur throughout the “access period”. The requirement specified in s.180(3) must occur before the start of the “access period”.

[19] The “access period” is defined in s.180(4) as being “the 7 day period ending immediately before the start of the voting process referred to in subsection 181(1).”

[20] The emphasis in the definition of “access period” is not on the actual commencement of the vote, nor on the conclusion of the actual vote but is expressed more generally to include the “voting process referred to in subsection 181(1).”

[21] It appears from the structure of Division 4 of Part 2-4 of the FW Act that there is a difference in meaning between the term “voting process” and the actual commencement or conclusion of the vote of employees. This is readily seen by comparing the language of subsections 182(1) and (2).

[22] In s.182(1) an agreement is made when a majority of employees approve the agreement. The making of the agreement occurs in a technical sense at the conclusion of the vote even if the voting process has not been completed. Thus if the voting process contains a detailed procedure for the counting of votes and the formal declaration of the results of the vote the enterprise agreement is not made at the conclusion of the declaration of the vote, which may be sometime after the close of the vote but rather is made as at the date of the close of the ballot. This is so because whilst it may take some time to count and declare the vote, the enterprise agreement is made “when a majority of those employees who cast a valid vote approve the agreement”, and, all that the count and declaration have done is to confirm that as at the close of the ballot a majority of those employees who cast a valid vote approved the agreement.

[23] In the case of a multi-enterprise agreement s.182(2) provides for a different time at which the multi-enterprise agreement is made. A multi-enterprise agreement is made “immediately after the end of the voting process referred to in subsection 181(1)”. The emphasis on the end of the voting process reflects the fact that in a multi-enterprise agreement there may be some enterprises where the vote went against approval of the agreement and some where the vote was to approve the agreement. In such a case the multi-enterprise agreement is only made in relation to those employers whose employees approved the multi-enterprise agreement. The voting process itself may include different start and finish times for the votes of employees at different enterprises. Thus the emphasis is placed upon the end of the voting process as the appropriate time to determine if the multi-enterprise agreement is made.

[24] As both sections 180(4) and 182(2) refer to “the voting process referred to in subsection 181(1)” that term must have the same meaning in both sections. Section 180(4) refers to the start of the voting process and s.182(2) refers to the end of the voting process. However the language of s.181 does not refer to a voting process but only to a request by the employer. The term “voting process” as used in s.180(4) and s.182(2) is reference to the employer requesting the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

[25] Whilst the term “voting process” is not defined the term should be given its ordinary meaning.

[26] ‘Process’ is defined in the Macquarie Concise Dictionary to mean:

“a systematic series of actions directed to some end”.

[27] The term “voting process” as used in s.180(4) and s.182(2) must include the systematic series of actions by which an employer initiates the request for employees to approve the agreement by voting on it, carries out the request for employees to approve the agreement by voting on it and determines the outcome of the request for employees to approve the agreement by voting on it. This must be so as the end of the process is to determine whether or not the employees approve the agreement.

[28] I note that s.180(3) requires the employer to take all reasonable steps by the start of the access period to notify relevant employees of both the time and place at which the vote will occur and the voting method that will be used. This requirement to give early notice to employees of what will occur does not detract from what constitutes the “voting process referred to in subsection 181(1)”.

[29] Whilst it is not necessary to detail every likely action that would comprise the systematic series of actions directed to having employees vote to approve an enterprise agreement, it would appear obvious that at least one of the actions would include the distribution of ballot papers to the employees.

[30] As identified in paragraph [14] above the employer had at the very least commenced the “voting process’ on 4 April 2011 by providing employees with their ballot on that day, even though the covering letter dated 4 April 2011 nominated that the vote would “take place from Friday 22nd April to Friday 29th April”.

[31] The access period as defined by s.180(4) was therefore the 7 day period ending immediately before the 4 April 2011.

[32] Section 180(2)(a) required that the employer take all reasonable steps to ensure that during the 7 day period ending immediately before the 4 April 2011 that employees were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement. As the employer declares in the Form F17 the material required to be given to employees during the access period was not in fact made available until the 11 April 2011.

[33] The employer has not complied with the requirements of s.180(2)(a), 180(2)(b) and 180(3) of the FW Act. Non compliance with any one of ss.180(2)(a), 180(2)(b) or 180(3) means that the employer could not, because of s.180(1), make a request under s.181(1) to employees to approve the agreement and thus the employees could not make the agreement by voting for it under s.182.

Content of agreement

[34] I note that the undertakings provided by the applicant do satisfy the concerns I raised in relation to the content of the agreement and if not for the non-compliance detailed above in relation to the vote and in relation to appointment of bargaining representatives, the agreement would have passed the Better Off Overall Test (BOOT).

[35] 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.

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