Quality Bakers Australia Pty Limited T/A Goodman Fielder

[2018] FWCA 4911

[2018] FWCA 4911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Quality Bakers Australia Pty Limited T/A Goodman Fielder
(AG2018/400)

GOODMAN FIELDER BAKING (DARWIN) ENTERPRISE AGREEMENT 2016 - 2019

Northern Territory
COMMISSIONER JOHNS	SYDNEY, 28 AUGUST 2018

[1] An application has been made for approval of an enterprise agreement known as the Goodman Fielder Baking (Darwin) Enterprise Agreement 2016-2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Quality Bakers Australia Pty Limited T/A Goodman Fielder (Quality Bakers/Applicant). The Agreement is a single enterprise agreement.

[2] Pursuant to clause 1.2 of the Agreement its scope is described as follows,

“This Agreement shall govern the wages and conditions of all non-salaried employees of Quality Bakers Australia Pty Limited (trading as Goodman Fielder Baking) employed at the location and in the classifications set out in this Agreement, whether permanent, part-time or casual, engaged in the performance of work in or in connection with bread making, baking and related activities.”

[3] Clause 1.3 of the Agreement provides that the relevant location is “Quality Bakers Australia Pty Limited (trading as Goodman Fielder Baking) Winnellie Road, Darwin, Northern Territory.”

[4] Clause 1.4 of the Agreement limits is application to “all non-salaried employees of the Company employed at the location at Winnellie Road, Darwin, Northern Territory…”.

[5] The scope of the Agreement is identical to the scope of the enterprise agreement it seeks to replace, namely the Goodman Fielder Baking (Darwin) Enterprise Agreement 2013-2016.

[6] However, the scope in the Agreement differed from the description in the Notice of employee representational rights (NERR). It referred to “employees that work on the Winnellie site.” That is to say the NERR did not limit the scope to non-salaried employees. It is not uncommon for the scope in Agreements to differ from the NERR.

[7] United Voice was a bargaining representative for the Agreement. In the Form F18 that United Voice filed with the Commission it said that is supported the approval of the Agreement. Further, it gave notice under s.183 of the Act that it wants the Agreement to cover it. However, United Voice noted that it disagreed with a part of the Applicant’s Statutory Declaration. It wrote:

1. “The Employer at paragraph 2.2 of its Form F17 states: "All weekly (non-salaried) employees in the classifications outlined in the Agreement are covered by the EA. However; Employees at all levels (not just senior executives) are not covered as they are salaried, paid monthly and perform roles not covered by the EA classification".

2. We are uncertain what the Employer means.

3. Further, there were no discussions relating to clause 1.2 "Scope of Agreement" of the Enterprise Agreement during negotiations.”

[8] It is the case that the Applicant’s F17 employer statutory declaration did not accurately record the scope of the Agreement to be derived from the operation of clauses 1.2 and 1.4 of the Agreement. The paraphrasing caused some confusion.

[9] On 29 May 2018 the Applicant provided a revised F17 amending Question 2.2 to state the following:

“The Agreement applies to non-managerial roles that would otherwise fall under the Food, Beverage and Tobacco Manufacturing Award 2010 and applies to operations at the Quality Bakers Australia Pty Ltd factory at Winnellie Road, Winnellie, Darwin NT”.

[10] It is to be noted that the revised F17 also did not accurately record the scope of the Agreement to be derived from the operation of clauses 1.2 and 1.4 of the Agreement. The paraphrasing caused some confusion.

[11] On 13 June 2018 United Voice sent correspondence to the Commission maintaining its objection in relation to the coverage clause “because there were no discussions relating to changing the clause from how it read in other Enterprise Agreements, during negotiations.”

[12] On 19 June 2018 the Applicant responded to United Voice in relation to the Scope of the Agreement as follows:

1. The Notice of Employee Representational Rights (NERR) referring to 'employees at the Winnellie site' was not a broadening of Scope; the Scope of coverage was not discussed during the Goodman Fielder Baking (Darwin) Enterprise Agreement 2016 - 2019 (EA) negotiations as the scope of coverage did not change from the Goodman Fielder Baking (Darwin) Enterprise Agreement 2013 - 2016 (previous agreement) and had no intention of changing;

2. All employees were aware that the previous agreement included only those employees who are wages employees at the Winnellie site; and could associate that any communication regarding the EA would only relate to the Wages employees;

3. For those working on the Winnellie site it is common knowledge that the EA does not apply to salaried employees and it is understood by all that the EA is wages employees only; The NERR stating 'employees at the Winnellie site' is common language to refer to the wage EA covered employees and not salaried employees;

4. The ultimate coverage under the NERR ensured that all those under the scope of the agreement were captured under the NERR;

5. The Commissioner can be satisfied that those employees covered under the scope of the agreement (as per the F17) received NERR and genuinely agreed to the EA.

[13] On 22 June 2018, United Voice responded to the Applicants’ submissions. It wrote,

United Voice maintains its objection due to no discussion occurring with employees to change the intent of the scope of the EA.

The inconsistencies in the NERR, the Form F17 and the scope identified by Member Assist below, supports how it may not have been explained to employees.

Further, United Voice claimed that Goodman Fielder, the Employer, never discussed with United Voice what wage/salaried employee positions were to be excluded from the Agreement.

[14] On 26 June 2018 the matter was programmed for hearing on 8 August 2018. The Applicant and United Voice were both directed to file “outline[s] of argument, statements of evidence and other documents they intend[ed] to rely on”.

[15] On 10 July 2018 United voice wrote the Commission as follows,

“… United Voice has no further submission to make other those concerns already expressed in our Form F[18], and emails to Member Assist dated 13 June 2018 and 22 June 2018.”

[16] That is to say United Voice decided not to file any evidence from any of its officials, delegates or members involved in bargaining about what occurred in bargaining or about whether the Agreement was genuinely agreed to.

[17] On 24 July 2018 solicitors acting for Quality Bakers filed further submissions. The Applicant submitted, amongst other things that,

“… the coverage of a proposed enterprise agreement could reduce during bargaining so that the proposed enterprise agreement would not cover employees described in the proposed coverage set out in the NERR, however the employer would not be required to distribute a further NERR reflecting that reduced coverage”.

[18] On 31 July 2018 both parties indicated that they did not object to the matter being decided based on the material currently before the Commission. The hearing listed for 8 August 2018 was vacated.

[19] In the present matter there is a complaint made by United Voice that the scope of the Agreement differs from the NERR. As was correctly submitted by Quality Bakers that is not uncommon. Further, it is not a basis for rejecting the approval of an enterprise agreement in circumstances where the NERR otherwise complies with Schedule 2.1. In the present matter the NERR does so comply.

[20] In its Form F18 statutory declaration United Voice indicated that it supported the approval of the Agreement. Its subsequent communication with the Commission indicated that it disagreed with the scope of the Agreement. However, having been provided with an opportunity to file in the Commission evidence from any of its officials, delegates or members that will support a finding that the Agreement was not genuinely agreed to United Voice have elected not to do so. Consequently, there is no evidentiary basis for finding that the Agreement was not genuinely agreed to in accordance with the FW Act. This is particularly so having regard to the identical scope contained in the predecessor agreement.

[21] For the reasons stated above I am not satisfied that there is any basis for not approving the Agreement.

[22] Consequently, the Agreement is approved. In accordance with s.54 of the FW Act, will operate from 5 September 2018. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

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