Resource Services Group E&I Pty Ltd

[2023] FWC 2066

[2023] FWC 2066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Resource Services Group E&I Pty Ltd

(AG2023/2474)

RSGX RESOURCE SERVICES GROUP E&I PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2022-2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 18 AUGUST 2023

Application for approval of an enterprise agreement – employees employed by another employer at time of NERR and vote – not a minor error etc – application dismissed

1. This is an edited version of a decision delivered ex tempore on 17 August 2023. Resource Services Group E&I Pty Ltd (RSG) has made an application under s 185 of the Fair Work Act 2009 (Act) for approval of an enterprise agreement called the RSGX Resource Services Group E&I Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 (Agreement). The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was a bargaining representative for the Agreement and filed a declaration stating that it did not wish to advise the Commission whether it supports or opposes approval of the Agreement.

1. In correspondence to the Commission, the CEPU advised that it supported the substantive terms of the Agreement, but that it was concerned that the Agreement might not be capable of approval because of uncertainty about the identity of the relevant employer at the time it was made. The union’s concern was framed with reference to the statutory requirement that an employer give employees a notice of employee representational rights (NERR). Following further correspondence with the parties, it appeared that there was also a question about whether the Agreement had been approved by employees of the relevant employer. I listed the application for hearing on 17 August 2023.

1. The F17A declaration filed by RSG in support of the application states that RSG gave the employees a NERR on 8 May 2023. A copy of the NERR was submitted to the Commission. It is in the prescribed form and states that RSG gives notice that it is bargaining in relation to an enterprise agreement which is proposed to cover employees of RSG who perform work in New South Wales and the ACT. At the hearing, RSG advised the Commission that at the time it issued the NERR, the employees who received it were employed by a related company, Resource Services Group X Pty Ltd (RSGX).

1. The F17A declaration further states that the employee vote on the Agreement occurred on 5 July 2023. RSG confirmed at the hearing that on that date, the employees who voted on the agreement were still employed by RSGX.

1. RSG advised the Commission that after the vote, on 24 July 2023, the employees of RSGX became employees of RSG.

1. RSG submitted that it had always been the intention and understanding of RSG and the relevant employees that RSG would be the employer and that the employees would be covered by an enterprise agreement that applied to their employment with RSG. It submitted that, although the employees had been employed by RSGX when they received the NERR and voted on the Agreement, these were minor procedural or technical errors that did not cause disadvantage to employees, and that the Commission should waive them under s 188(5).

1. Section 173(1) states that an employer that will be covered by a proposed enterprise agreement must take all reasonable steps to give a NERR to each employee who will be covered by the agreement and who is employed at the notification time. This provision requires that the employer give a NERR to its own employees. It does not allow an entity to give a NERR to prospective employees who are currently employed by someone else. In the present case, RSG gave the NERR to persons who were not its employees. This was an error.

1. Further, s 181(1) provides that an employer that will be covered by a proposed agreement may request the employees employed at the time who will be covered by the agreement to approve it by vote. Section 182(1) states that the agreement is made when a majority of those employees who cast a valid vote approve the agreement. But in the present matter, employees of RSG did not approve the agreement. Rather, employees of RSGX voted on an agreement that would apply to RSG. This too was an error.

1. I accept the company’s submission that there was nothing untoward about the movement of employees between the two companies. There were various business reasons for this. However, I am not persuaded that the above matters are minor procedural or technical errors, such that the Commission can waive them under s 188(2) (the pre-reform provision, relevant to the first error on 8 May 2023) or s 188(5) (the post reform provision, relevant to the second error on 5 July 2023). Employees of RSG employed at the notification time did not receive a NERR. It was employees of RSGX who received a NERR. Nor did employees of RSG vote to approve the agreement; employees of RSGX voted on an agreement that was to apply to RSG. In my view these are fundamental errors. An employer must make an enterprise agreement with its own employees, not those of another employer.

1. I note that the Act allows two or more related employers to make an enterprise agreement with the employees who are employed by all of the relevant employers (s 172(2)). RSG and RSGX are related companies. They could have jointly made an enterprise agreement with their employees under this section. But this is not what occurred. The Agreement is not expressed to cover both of these companies or related entities of RSG. (In fact, it is expressed to cover RSGX Resource Services Group E&I Pty Ltd, however this is one of the trading names of RSG).

1. I indicated to RSG at the hearing that if, after satisfying the statutory requirements, it makes a further application under s 185 for approval of the Agreement, it may request that the application be allocated directly to my chambers on the basis that I have dealt with the present application, and I will endeavour to determine the matter quickly.  

1. The application is dismissed.

DEPUTY PRESIDENT

Hearing details:

2023
Melbourne
17 August

Appearances:

K. Lawson-Ho for the applicant
A. Kentish for the CEPU

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