Racing Queensland Limited
[2012] FWA 6290
•25 JULY 2012
[2012] FWA 6290 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Racing Queensland Limited
(AG2012/5062)
DEAGON TRACK MAINTENANCE STAFF ENTERPRISE AGREEMENT 2011
Racing industry | |
COMMISSIONER ASBURY | BRISBANE, 25 JULY 2012 |
Deagon Track Maintenance Staff Enterprise Agreement 2011 - Failure of employer to provide notice of employee representational rights under s. 173 of Fair Work Act 2009 - Compliance with s. 173 not mandatory or an absolute requirement - All employees to be covered by agreement had exercised right to appoint union as bargaining representative when notice was required to be given - Genuine agreement - Agreement approved.
Introduction
[1] Racing Queensland Ltd has made an application under s.185 of the Fair Work Act 2009 (the Act) for the approval of the Racing Queensland Limited Deagon Track Maintenance Staff Enterprise Agreement 2011 (the Agreement).
[2] As required by s.185(2) of the Act and the Fair Work Australia Rules 2010,the application is accompanied by Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement. That form has been completed by Ms Joanne Barrett, an Industrial Relations Consultant. A note on the form F17 indicates that the declaration must be made by an officer or employee of the employer. The Application for Approval of the Enterprise Agreement indicating that Ms Barrett is a bargaining representative for the employer has been signed by Ms Barrett. The capacity in which Ms Barrett made the declaration is not apparent.
[3] Question 2.4 of the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17) has been answered as follows:
2.4 Did the employer take all reasonable steps to give notice of the rights to be represented by a bargaining representative to each employee who will be covered by the Agreement as required by s.173?
[ ] Yes
[x] No - see note below
[4] The response to question 2.4 provided in the form F17 filed by Queensland Racing Ltd is as follows:
The Employer was provided with an appointment of bargaining representative notification by the AWU on 27 September 2011, which covered all employees subject to this agreement at the commencement of the bargaining. The Employer and the AWU officer agreed that it was not necessary to inform employees of their rights as the bargaining representative had already been appointed.
[5] The Australian Workers’ Union of Employees Queensland (AWU) has filed a Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement (Form F18) indicating that it wants to be covered by the Agreement, and it agrees with its contents.
[6] On 6 June 2012, correspondence was forwarded to the Bargaining Representative for Queensland Racing and the AWU indicating my concerns that the Form F17 had not been completed by an officer or employee of the employer and that Racing Queensland Ltd and that the AWU had apparently agreed to waive the requirements of the Act with respect to the notice of employee representational rights. A form F17 executed by the Acting CEO of Racing Queensland Ltd was filed on 12 June 2012.
[7] The application was listed for hearing to enable Racing Queensland Ltd and the AWU to address the issues arising from the apparent failure to comply with the provisions of the Act with respect to the provision of the notice of employee representational rights. The parties were also given the opportunity to provide written submissions following the hearing. A written submission was received from Racing Queensland and the AWU sent an email indicating its support for that submission.
Submissions and supporting material
[8] The Form F17 filed by Racing Queensland Ltd indicates that there are three employees proposed to be covered by the Agreement and that all three employees voted to approve the Agreement. An affidavit sworn by Darryl Michael Reid, Facilities Manager for Racing Queensland Ltd states that on 27 September 2011, the three employees covered by the Agreement delivered a notice nominating the AWU as their bargaining representative. At the point the application for approval of the Agreement was heard, those employees are the only employees covered by the Agreement. The notice was attached to Mr Reid’s affidavit and is in the following terms:
“We the workers at Deagon Race Track hereby reject Queensland Racing’s offer of a 0% wage increase.
We request that management start meeting with our representative at the AWU for a new Enterprise Bargaining Agreement.”
[9] The notice is signed by each of the three employees including Mr Michael Minors, who appeared at the hearing into the approval of the Agreement. Mr Minors said that he was the spokesperson for the employees proposed to be covered by the Agreement. Mr Minors also confirmed in a statement made at the hearing into the approval of the Agreement, that the employees were happy with the representation provided by the AWU and would not have appointed another representative if they received the notice of representational rights.
[10] Ms Barrett said that Racing Queensland Ltd had formed the view that as the AWU was a default bargaining representative, and had been subsequently appointed in writing by all of the employees to be covered by the Agreement, there was no requirement to issue them with the notice of representational rights. Ms Barrett also confirmed that the wage increases under the Agreement had already been paid by Racing Queensland Ltd. In its written submissions filed after the hearing, Racing Queensland Ltd submitted that:
● Employees were aware of their representational rights and had appointed the AWU as their bargaining representative at the outset of negotiations;
● Agreement had been genuinely reached;
● Other cases could be distinguished on the grounds that employees had not been represented by a union or appointed a bargaining representative;
● The outcome of the bargaining process would have been unchanged had the notice of representational rights been issued; and
● The cases demonstrate an approach from Fair Work Australia to read the requirements in s.173 as flexible in the interests of ensuring that a genuine agreement has been reached.
Legislative provisions
[11] Section 173(1) of the Act provides that an employer who will be covered by a proposed enterprise agreement must 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 who is employed at the notification time. In the present case, the notification time was the time when the employer agreed to bargain or initiated bargaining for the Agreement. The notice must be given as soon as practicable, and not later than 14 days after the notification time for the agreement, and is not required to be given if the employer has already given a notice within a reasonable period before the notification time. The various ways in which the notice may be given are provided in Regulation 2.04 of the Fair Work Regulations 2009 (the Regulations).
[12] The content of the notice is prescribed in s.174 of the Act, and by virtue of s.174(6) the regulations may prescribe other matters relating to the content or form of the notice and the manner in which it may be given. Regulation 2.05 and Schedule 2.1 to the Regulations prescribe the form of the notice of employee representational rights. Relevantly for the purposes of these proceedings, s.174 of the Act provides as follows:
174 Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low-paid authorisation is in operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).
Regulations may prescribe additional content and form requirements etc.
(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.
[13] By virtue of s.176(1)(b) of the Act, an employee organisation of which an employee is a member, is a bargaining representative for the agreement unless the employee has appointed another person or has revoked the appointment. The prescribed Notice of Employee Representational Rights in Schedule 2.1 of the Regulations is in the following terms:
Schedule 2.1 Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174 (6)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low-paid authorisation applies — include:]
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.
[If a low-paid authorisation applies to the agreement — include:]
Fair Work Australia has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.
[if the employee is covered by an individual agreement-based transitional instrument — include:]
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:
● the nominal expiry date of your existing agreement has passed; or
● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Australia Infoline on [insert number].
[14] Section 181(1) of the Act provides that an employer that will be covered by a proposed enterprise agreement may request employees employed at the time who will be covered, to approve the agreement by voting for it. Section 181(2) provides that such a request must not be made until at least 21 days after the day on which the last notice of employee representational rights under s.173(1) was given.
[15] The provisions of the Act relevant to the question of when Fair Work Australia must approve an enterprise agreement are found in sections 186 to 188 of the Act. Those sections provide as follows:
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
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make 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)).
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) FWA must be satisfied that the agreement does not include any designated outworker terms.
Requirement for a nominal expiry date etc.
(5) FWA must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which FWA approves the agreement.
Requirement for a term about settling disputes
(6) FWA must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
Note 1: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).
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.
Requirement relating to notice of variation of agreement
(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), FWA must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).
Requirements relating to particular kinds of employees
(4) FWA must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.
Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.
Requirements relating to greenfields agreements
(5) If the agreement is a greenfields agreement, FWA must be satisfied that:
(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and
(b) it is in the public interest to approve the agreement.
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.
Case Law
[16] A number of decisions of Fair Work Australia have considered the effect of a failure by an employer to give the notice of employee representational rights in the manner and/or the form prescribed in the Act and the Regulations. The cases have focused on whether all reasonable steps have been taken to provide the notice to employees 1, and additions2 or omissions3 with respect to the terms to the prescribed form of the notice. The following principles have been established:
● The objects and the scheme of the Act imply that the requirements for approval of enterprise agreements are to be applied in a practical manner without unnecessary technicalities; 4
● There is a general duty on Fair Work Australia to approve agreements and s.186 establishes a mandatory obligation to do so subject to the requirements in that section and s.187 being met; 5
● There is no general discretion by reference to public interest considerations, the objects of the Act or general equity considerations to consider whether to approve an agreement that otherwise satisfies the statutory tests; 6
● In considering whether a failure or omission on the part of a bargaining representative with respect to a step in the making of an enterprise agreement renders the agreement incapable of approval, the test is whether it was a purpose of the legislation that an act done in breach of the relevant legislative provision should be invalid; 7
● The context and purpose of provisions in ss. 173 and 181 is important and seen by the legislature as an essential ingredient of fair bargaining and agreement making under the Act as is the notion of employees being free to exercise their choice of representation. 8
[17] In National Tertiary Industry Union v University of New South Wales a Full Bench of Fair Work Australia noted that nowhere in s.188 of the Act is there a requirement for Fair Work Australia to be satisfied that the employer has taken all reasonable steps to give notice of representational rights under s.173 of the Act, and that this requirement arises in an indirect way through the reference in s.188(a)(ii) to s.181(2) having been complied with. Section 181(2) provides that employees are not to be requested to approve an agreement until at least 21 days after the day on which the last notice under s.173(1) is given. The Full Bench went on to observe that Fair Work Australia is not required to consider whether all reasonable steps were taken to give that notice. In relation to a submission that no jurisdictional error arose from a failure to consider that matter, the Full Bench observed:
“[18] Although we have decided this ground of appeal on the basis of the correct construction of s.173 and its application to the facts, we think it appropriate to observe that the ... submission that it was not strictly necessary ... to consider whether s.173 had been complied with is arguable. One important consideration weighing against this submission however is the key role of the bargaining representatives in the enterprise bargaining regime in the Act and the rights and obligations employee organisations have in that regime. In this context, informing an employee at the start of bargaining about how they may be represented is an essential component. So, a construction of the Act which may deprive a party from informing FWA, when called upon to approve an agreement, that in fact all reasonable steps had not been taken as required by s.173 would not be one readily adopted. ...” 9
[18] There is further Full Bench authority in Bland v CEVA Logistics (Australia) Pty Ltd 10 for the proposition that the requirements in s.173 are not mandatory. In that case a Full Bench was considering an appeal by an employee covered by an enterprise agreement in circumstances where that employee maintained that the employer had not provided him or any employee in his work area (one of a number of work sites to be covered by the relevant enterprise agreement) with the notice of representational rights under s.173(1) of the Act. In dismissing the appeal, the majority of the Full Bench said:
“[42] Having regard to the scheme of the Act, the context in which s.173(1) is found and the terms of s.188, we doubt that compliance with the provisions of s.173(1) is mandatory, such that a breach of it necessarily renders an enterprise agreement void and incapable of approval.
[43] There might be circumstances where a failure to comply with the requirements of s.173(1) could lead to Fair Work Australia not being satisfied that an agreement was genuinely agreed to. We could envisage a situation where a failure by an employer to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee might lead to a conclusion that the employees who did not receive such a notice and nevertheless voted to approve the agreement did not genuinely agree to it because they had been deprived of the opportunity to appoint a bargaining agent and were thereby prejudiced in the decision-making process. In such a case there would be reasonable grounds for believing that the agreement had not been genuinely agreed to by the employees under s.188(c). However, that is not the case here.”
[19] Further, in CJ Manfield Pty Ltd v CEPU 11a Full Bench of Fair Work Australia observed that the requirement to provide a notice in s.173 is not an absolute requirement. The requirement is to take “all reasonable steps to give notice.12
Conclusions
[20] The factual circumstances in this case are highly unusual. After considering those circumstances and the relevant legislation and case law, I have come to the view that the failure to comply with provisions of the Act in relation to provision of notices of representational rights to employees, in the circumstances of this case, do not render the Agreement incapable of approval.
[21] The notice of employee representational rights and the statutory requirements for the employer to take all reasonable steps to give it to employees, are aimed at ensuring that employees are free to exercise their choice of representation and that an agreement is genuinely approved. The notice of representational rights, in the circumstances of this case, would have informed employees of the nature and purpose of an enterprise agreement and that they had the right to appoint a bargaining representative of their choice, including themselves, by giving a written appointment to the employer. The notice would have informed the employees that if they are a member of a union that has the right to represent their industrial interests, that union would be their bargaining representative unless they revoked its status. The notice would also have directed employees to their employer or to the Fair Work Australia Infoline if they had further questions.
[22] Applying a practical approach without unnecessary technicality, at the point the notice of representational rights was required to be given, all three of the employees who voted to approve the Agreement had already given notice to the employer that they had appointed the AWU as their bargaining representative. The notice of that appointment was given on 27 September 2011, and the Agreement was not voted on until 18 April 2012. As all three employees were members of the AWU at the relevant time, that Union was also their default bargaining representative prior to the written appointment on 27 September 2011.
[23] In those circumstances steps to give employees a notice informing them of rights they had already exercised would have been pointless, and it was reasonable that the employer and the AWU, as bargaining representative for the employees, decided not to take such steps.
[24] A representative of the three employees at a hearing before Fair Work Australia has stated that they would not have altered their appointment of the AWU, had they been advised of their right to do so. The AWU has also filed a Form F18 Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement, agreeing with the employer Declaration that the Agreement has been genuinely approved by all employees. The Declaration filed by the employer indicates that the vote to approve the Agreement was unanimous.
[25] There is no basis upon which I could find that the Agreement was not genuinely agreed to by employees. There are no employees or organisations of employees taking issue with the terms of the Agreement, or with the process by which employees agreed to its terms. There is no complaint from any employee covered by the Agreement of a denial of rights during and after the process of making the Agreement. The employer has paid the wage increases under the Agreement, and there are no other matters preventing its approval.
[26] In all other respects, all requirements of the Act necessary for approval of the Agreement have been met. In the unusual and particular circumstances of this case I have decided to approve the Agreement and a separate Decision to this effect will issue.
COMMISSIONER
Appearances:
Ms J. Barrett and Mr M. Minors on behalf of Racing Queensland Ltd.
Ms R. Broanda on behalf of the Australian Workers’ Union.
Hearing details:
2012.
Brisbane:
July 11.
Final written submissions:
17 July 2012.
1 Stephen Bland v CEVA Logistics (Australia) Pty Ltd
2 Galintel Rolling Mills Pty Ltd T/A The Graham Group [2011] FWAFB 6772.
3 “Automotive Food Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Inghams Enterprises Pty Ltd [2011] FWAFB 6106.
4 McDonald’s Australia Pty Ltd & anor [2010] FWAFB 4602; CJ Manfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FWAFB 3534.
5 CJ Manfield Pty Ltd v CEPU op.cit. at [28] - [29].
6 Ibid at [29].
7 AMWU v Inghams op.cit. at [48] citing the decision of the High Court in Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355.
8 Galintel Rolling Mills T/A the Graham Group [2011] FWAFB 6772.
9 National Tertiary Industry Union v University of New South Wales [2011] FWAFB 5163 at [16] - [18].
10 [2011] FWAFB 7453.
11 [2012] FWAFB 3534.
12 Ibid at [44].
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