Rls (Wa) Pty Ltd T/A Rigsafe Wa
[2025] FWC 448
•14 FEBRUARY 2025
| [2025] FWC 448 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Rls (Wa) Pty Ltd T/A Rigsafe Wa
(AG2024/3196)
RLS ENTERPRISE AGREEMENT 2024
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 14 FEBRUARY 2025 |
Application for approval of the RLS Enterprise Agreement 2024
Introduction
An application has been made by RLS (WA) Pty Ltd (RLS) for approval of an enterprise agreement known as the RLS Enterprise Agreement 2024 (the Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the Agreement if the requirements in ss. 186 and 187 of the Act are met
The Construction, Forestry and Maritime Employees Union (CFMEU) opposes the application. The union’s opposition is on the basis that the requirement in s186(2)(a) that the Commission be satisfied that the Agreement was genuinely agree to by the employees covered by it cannot be met. The union contends that the requirement cannot be met on three bases. First, RLS did not provide each employee with a notice of representational rights (NERR). Second, RLS misled the employees about their representational rights. Third, RLS did not take all reasonable steps to explain its terms.
The objection was the subject of a hearing. At the hearing RLS relied on a declaration filed with the application of Ms Tanya Fitzgerald, Business Manager and a witness statement of Ms Fitzgerald as well as a witness statement of Mr Stephen Mitchell, Senior Supervisor. Ms Fitzgerald and Mr Mitchell were cross examined. The CFMEU relied on witness statements of Mr Rhys Cardinal, Legal Assistant employed by the CFMEU, Mr Samual Beeton, Rigging Supervisor, and Mr Nikola Kursar who was employed by RLS as a Rigger. Each of the CFMEU witnesses was cross examined.
I will deal first with the related objections that go to the provision of the NERR and RLS misleading the employees about their representational rights.
Background
Ms Fitzgerald holds the role of Business Manager for RLS. Ms Fitzgerald’s evidence described the bargaining process associated with the Agreement which commenced on 11 July 2024 when RLS notified employees that there would be a toolbox meeting at the company’s new yard at 1.00 pm on 12 July 2024. Attendance was said to be compulsory. The notification did not state the purpose of the meeting.
Fifty one employees attended the 12 July 2024 meeting. This was most, but not all RLS’s employees. There was some contest in the evidence about what happened at the meeting. Ms Fitzgerald confirmed that the employees were not told prior to the meeting about the company’s proposal to bargain for an enterprise agreement.
Ms Fitgerald’s witness statement gave a brief description of the meeting. She said that while the purpose of the meeting was to discuss bargaining for a new agreement the meeting commenced with discussions on other employee related matters such as the employees benefit package and employee of the month. A presentation was also given about novated leases. Ms Fitzgerald and Mr Mitchell gave estimates of the time the meeting took and the time taken to deal with the preliminary matters. Ms Fitzgerald said the meeting went for one hour from 1.00 pm to 2.00 pm and estimated that the preliminary matters went for between 15 and 20 minutes. Mr Mitchell said the meeting went for an hour and a half and estimated each of the preliminary topics took 10 to 15 minutes. The significance of these estimates is that the time taken on the agreement related matters was between 40 minutes and an hour.
Ms Fitzgerald said after dealing with the preliminary issues she addressed the meeting about RLS’s intention to commence discussions towards a new enterprise agreement. She stated that she read from a script she prepared for the meeting. A copy of the script was provided. It read:
RLS (WA) Pty Ltd (RLS) are seeking to commence discussions with employees to reestablish an Enterprise Agreement that will cover terms and conditions of employment. Please find Schedule 2.1 to formally commence the process for making an Enterprise Agreement for the construction employees. During the agreement making process RLS will explain to you and seek feedback on any changes to current terms and conditions of employment. Having an Enterprise Agreement in place provides RLS with a competitive advantage over other subcontractors as major clients often look for subcontractors to have an in-term Agreement in place before a contract is awarded. There have been a number of changes to employment legislation in the last 3 years, this RLS included the introduction of the statement of principles to ensure an agreement is genuinely agreed and a stepped process for negotiating and putting in place an Enterprise Agreement is followed.
To start the process, we are required to distribute this document, called the Notice of Representational Rights (NERR), to all employees who will be covered by the proposed Enterprise Agreement. This document informs you that we are looking to commence discussions with you for a replacement Enterprise Agreement and you will have the ability to nominate a bargaining representative for the process. You can nominate yourself as a representative, a colleague or someone else just not senior management. I will read the NERR now.
A form will be distributed now that provides you with the ability to nominate a representative for the negotiation process.
Once a final proposed RLS agreement has been determined, employees will be provided
a copy of this and following a review period will be asked to vote on the proposed Agreement before it can be lodged with the Fair Work Commission for approval. This won't happen for at least 4 weeks, due to the requirements under the Fair Work Act. You will be kept informed on the negotiations and any queries will be addressed as soon as possible.If you have any queries at this stage then please let me know.
The union disputed the suggestion that Ms Fitzgerald read from a script. Mr Beeton did not mention the script. Mr Kursar said that Ms Fitzgerald appeared to read from bullet points. Mr Mitchell said that Ms Fitzgerald read the NERR and said that he believed that Ms Fitzgerald only read the NERR. He did not say that she read from a script. I accept that Ms Fitzgerald prepared the script. I find that she did not read from it verbatim but that she had reference to it when addressing the meeting.
Ms Fitzgerald said that she read out the NERR. She stated hard copies of the NERR were then handed out. These matters are more significant as RLS was required by ss. 173 and 174 s. to provide employees with a copy of the NERR. The requirement is that the notice be provided, not that it be read. The requirement is also that the notice be provided to each employee. Mr Mitchell said that he and others handed out copies of the NERR. Mr Beeton said that he did not receive a hard copy of the NERR and that he had not seen one before. He said that he kept all of the documents handed out at the meeting and that the NERR was not amongst them. Mr Kursar also said that he did not receive the document and had not seen it before.
This evidence is not mutually exclusive. I can accept Ms Fitzgerald and Mr Mitchell’s evidence that the NERR was handed out to employees at the meeting while also accepting the evidence of the two employees that the document was not handed to them. The company did not have a record of who was or was not handed the document. I find that the NERR was handed out at the meeting. It may well be that most received it, but neither Mr Beeton nor Mr Kursar were provided with the document. I was asked to find that Mr Beeton and Mr Kursar were not truthful. They were cross examined on this question. They both maintained that they had not seen the document. There was nothing in their demeanour that suggested that they were not truthful. Nor was there anything in the evidence that otherwise contradicted their recollection. Ms Fitzgerald and Mr Mitchell’s evidence did not preclude the possibility that while the documents were handed out, they were not handed out to all employees.
All of the witness agree that a bargaining nomination form was provided to each employee who attended the meeting. Mr Kursar recalls that Ms Fitzgerald asked for volunteers to be bargaining representatives. He said three supervisors volunteered; Mr Hewson, Mr Milne and Mr Mitchell. Mr Beeton said that Ms Fitzgerald told the employees that they had to nominate employees who were present as bargaining representatives. Mr Beeton said that an employee asked if the employees could go away for a couple of days and think about who they would nominate. Ms Fitzgerald’s response was that they could not because they would forget and that the forms needed to be submitted at the meeting.
Ms Fitzgerald’s account was that she asked anyone who was interested in being a bargaining representative to put their hand up. Ms Fitzgerald said she was interrupted by an employee who asked her to leave the meeting so the employees could talk about representation amongst themselves. Ms Fitzgerald said she agreed with the proposal and that she and other office staff left the meeting. She could not recall an employee asking for time to consider the nomination. I find that Mr Beeton’s account of Ms Fitzgerald being asked by an employee to give time to return the forms sometime later and her refusal to have occurred. Such a refusal is consistent with the approach taken by Ms Fitzgerald of getting nominations finalised on the day. It is also consistent with the approach taken in the days following seeking prompt return of nomination forms. Those events are described below.
Mr Mitchell’s account of what Ms Fitzgerald said was that anyone could be a bargaining representative and that it was “free game for anyone to be voted up”. During cross examination Mr Mitchell’s evidence was that he and the other employees were led to believe there was to be a vote so people could choose their representative. He confirmed that he volunteered to be a bargaining representative. Once Ms Fitzgerald left the meeting employees discussed who would be bargaining representatives and completed the nomination forms.
Mr Beeton and Mr Kursar gave similar evidence about what happened after Ms Fitzgerald left the room. In cross examination Mr Beeton said:
Whilst you were discussing who, if anyone, you were going to appoint as a bargaining representative there was no management employee present in the room?---Agreed.
While you were discussing who, if anyone, you were going to be appointing as your bargaining representative you did so in small groups?---Agreed.
After you'd had that discussion in small groups the employee workforce came back as a collective?---Agreed.
And once you'd come back as a collective certain employees asked Mr Milne, Mr Hewson and Mr Mitchell to be their bargaining representatives?---Agreed.
…
But you appointed Mr Milne as your bargaining representative?---Yes.And when you had done that you hadn't raised any concerns either in those small groups?---It was discussed in the group. I didn't actually know Mr Milne myself, personally, at the time. So I had concerns about the choice of him and I felt like I had to choose somebody.
So why did you choose Mr Milne?---I chose him because I was given the choice of the three gentlemen, and he was just the one I chose. I didn't know any of them personally at the time. So I didn't have a choice of to anyone that I wanted to nominate.
So why didn't you say, 'I don't know any of you. I don't want to nominate you.'?---Because I felt under pressure to make a selection on the spot.
But no one had told you you needed to make a selection on the spot?---As I have indicated earlier while we had been told we had to make a selection on that day we weren't allowed to go away and think about it.
Well, I put it to you that the reason that you nominated Mr Milne was that you wanted him to be your bargaining representative, not because you felt pressured to do so?---Again I would disagree.
Mr Kursar’s evidence during cross examination was:
You were appointed Mr Milne as your bargaining representative?---Yes, sir.
You knew Mr Milne?---No.
You wanted him to be your bargaining representative?---Yes. Due to the fact that
one of the blokes I spoke to vouched for him and that the fact that he was just one
of the workers and not necessarily a supervisor.And you understood that you didn't have to nominate anyone?---No, well as I
recall we were obligated that someone needed to be – you know – people had to
put their names forward.But no one ever told you that you had to nominate anyone?---Well, it was implied
I guess – but, yes – whether there was felt or - - -No one ever said words to that effect?---No. I can't – I wouldn't be able to recall
that whether that was mentioned or not. It was just felt that it was an obligation
there that - - -And so - - -?---- - -someone – you know - - -
Let's just proceed. After the bargaining nomination forms were handed out you broke. Members of the management team left the room?---That's correct. Yes.
And you engaged in discussions as a workforce about the appointment of bargaining representatives?---Yes. I'll go – yes, there was a bit of a confusion over the forms too. Like, as in people putting their name in the wrong spot. So they were nominating themselves and then putting the person that they – yes, it was back to front. So there was a bit of confusion. And, yes, it was just a bit – a bit awkward, I guess
Mr Mitchell said that at the end of the meeting he took the completed forms to Ms Fitzgerald’s office and handed them to her. Ms Fitzgerald said that after the forms were reviewed the employees had nominated either Mr Mitchell, Joel Hewson, James Milne or a combination of those. Ms Fitzgerald said she returned to the workshop and congratulated the bargaining representatives on being nominated.
Later that day Ms Fitzgerald identified 10 employees who had not attended the meeting. Her evidence was that she sent them messages using Docusign which is messaging software that allows documents to be sent and signed electronically. A copy of those messages was provided.
Eight of the messages commenced with the following words:
FYI - We had a companywide toolbox meeting today and 3 colleagues have put their hand up and were voted so far by everyone that was here today, they are James Milne Joel Hewson Stephen Mitchell
The other two messages commenced with the following words:
FYI- At today's companywide toolbox meeting these were the three that put their hand up and have been nominated by their peers so far James Milne Joel Hewson Stephen Mitchell
The messages went on to advise the employees that RLS was in the process of negotiating an enterprise agreement. It said that employees would be provided with a copy of the NERR by email. The message encouraged the employees to read the NERR. Attached to the message was the appointment of bargaining representative form. The form could be completed and signed electronically using Docusign. Copies of the emails attaching the NERR were not provided.
Ms Fitzgerald said that between 12 and 15 July 2024 she reviewed the nomination forms and contacted any person who had not provided one. Four of those were sent text messages. The messages were to the following effect:
a) The first, to Kristian Harvey, said that Ms Fitzgerald had tried to call, that she was also texting photos of the documents the employees received the previous Friday, and asked that the nomination form sent on Docusign be filled out. In the message Ms Fitzgerald also offered to fill out the form for Mr Harvey, with his permission, and informed him that so far Mr Hewson, Mr Mitchell and Mr Milne had been nominated although he did not have to nominate one of those. Two photos were also sent to Mr Harvey. They were the NERR and the nomination form. There was a response from Mr Harvey that simply read “Steve Mitchell”.
b) The second, to David Njamio, referred to a discussion and said photos of documents from Friday’s meeting were attached. Ms Fitzgerald asked Mr Njamio to write on the photo or text her his nomination for bargaining representative and that she would fill out the form for him. He was also told that Mr Hewson, Mr Mitchell and Mr Milne had been nominated although he did not have to nominate one of those. Two photos were attached. Mr Najmio replied with the words “Joel Hewson for rep” and asked to be sent a new link to sign and asked if he should sign through Docusign or whether his message was okay. Ms Fitzgerlad responded that the message was fine, and she would print it off and staple it to his form.
c) The third, to Mathew Ambrose, was in the same terms as Mr Njamio’s message. Mr Ambrose responded he was happy to “vote with Joel, Stephen and James to be the reps”.
d) The messages with the fourth, Mr Williamson, only show the photos of the documents and Mr Williamson’s reply, which was “Hi there, I wish to nominate no one.”
Following this process Ms Fitzgerald collated all of the nomination forms. They were attached to her statement. The forms show:
a)46 were signed and dated 12 July 2024, of those;
i.25 nominated Mr Mitchell,
ii.13 nominated Mr Milne,
iii.2 nominated Mr Hewson
iv.Mr Hewson nominated himself,
v.Mr Mitchell nominated himself,
vi.Mr Milne nominated himself, and
vii.3 nominated Mr Mitchell and Mr Milne and/or Mr Hewson.
b)One was signed and dated 12 May 2024. It nominated Mr Mitchell.
c)Three, including one from Mr Harvey, were signed and dated 14 July 2024 and were signed on Docusign. All three appear to have originally appointed themselves with the initial appointment in electronic font but the names were crossed out and Mr Mitchell’s name inserted in handwriting.
d)Two were dated 15 July 2024. They were not signed but had handwritten notes that read: “signed over phone 15/7/24 – confirmed Tanya Fitzgerald and “confirmed over phone . 15/7/24”. The former nominated Mr Mitchell. The latter Mr Hewson.
Ms Fitzgerald goes on to describe the negotiation process which included three meetings with the bargaining representatives. Mr Mitchell’s evidence was that he attended the meetings. He said he did not know who had nominated him and he considered he was representing all of the employees in the negotiations.
Consideration
The legislation
To approve the Agreement the Commission must be satisfied that the requirements set out in ss. 186 and 187 are met. One of those requirements, found in s. 186(2)(a), is that the agreement has been genuinely agreed to by the employees covered by the agreement. Section 188(1) requires the Commission in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to to take into account the statement of principles made under s. 188B. The statement of principles includes the following:
1. The employer should ensure that employees of the employer who will be covered by a proposed enterprise agreement and are employed at the notification time for the agreement (as defined in section 173(2) of the Fair Work Act) are informed:
a. that the employer is bargaining for an enterprise agreement and of the proposed coverage of the agreement, and
b. of the employees’ rights to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, and how to exercise those rights at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement.
2. Where section 173(1) of the Fair Work Act applies to the employer in relation to a proposed enterprise agreement, the employer will be taken to satisfy paragraph 1 if, subject to paragraph 3, the employer gives a notice of employee representational rights in accordance with sections 173 and 174.
3. An employer should not mislead employees (by words, action or otherwise) as to:
a. the employees’ right to be represented by a bargaining representative, or
b. the role of an employee organisation as the default bargaining representative of its members.
Subsections 188(3) and (4) read:
Where notice of employee representational rights was required
(3) Subsection (4) applies in relation to an enterprise agreement if an employer was required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement.
(4) The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with the following provisions in relation to the agreement:
(a) sections 173 and 174 (which deal with giving notice of employee representational rights);
(b) subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given).
Section 173 relevantly requires an employer that will be covered by a proposed enterprise agreement to take 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 employed at the notification time for the agreement. The notification time includes when the employer agrees to bargain for the agreement. Section 174 relevantly requires the notice to contain the content prescribed by the regulations, not contain any other content, and be in the form prescribed by the regulations.
The Fair Work Regulations 2009 prescribe that the notice required by s. 174(1A) be in the form set out in Schedule 2.1 to the Regulations. The notice in Schedule 2.1 relevantly reads:
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 the Fair Work Commission that relates to 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 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.
The events described above give rise to concerns over whether the NERR was provided to each employee as required by s.173(1) and whether Ms Fitzgerald’s conduct from 12 to 15 July 2024 misled the employees as to their right to be represented in the bargaining. Other concerns arise from the rights described in the NERR about whether those who were nominated as bargaining representatives were notified in writing by those nominating them that they had been nominated, what effect the forms that nominated multiple bargaining representatives could have, and whether nomination forms filled out by Ms Fitzgerald on instructions were of any effect. Given my findings on the statutory requirements, those additional issues can be put to one side.
The first issue is whether RLS took all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who would be covered by the Agreement. RLS relies on two steps; the handing out of the NERR at the meeting on the 12 July 2024, and the provision of the NERR to those who did not attend the meeting using Docusign. Two employees who were present at the meeting gave evidence that they did not receive the NERR. I accept their evidence. In relation to the employees not present at the meeting, the content of the Docusign message indicates that the NERR was provided separately by email. Documents were provided that show that those employees received the Docusign message, but no emails were provided establishing that the employees were provided the NERR. I am consequently not satisfied that each employee was provided with the NERR.
The requirement in ss. 173 and 174 is that all reasonable steps be taken to give the notice to each employee. The two steps taken were to hand out the NERR at the meeting on 12 July 2024 and to email the notice to those not present at the meeting. In terms of ensuring that the employees received the notices at the meeting it would have been reasonable for a process to be in place so that RLS could be satisfied that everyone had received one, a show of hands at the meeting after the documents were circulated may have sufficed, or requiring employees to sign an acknowledgement that they received the notice. It would also have been reasonable to take the step to email the notice to all employees before the meeting. For that matter it would have been reasonable to email the notices after the meeting and allow employees the opportunity to nominate representatives, if they wished, at a later time. As these steps were available to RLS but not taken I find that all reasonable steps were not taken and that the requirement in s. 173 was not complied with. Consequently s. 188(4) applies such that I cannot be satisfied that the Agreement has been genuinely agreed to.
Section 188(5) provides that the Commission may disregard minor procedural or technical errors in determining whether a failure to comply with the requirements in s. 188(4) if satisfied that the employees were not likely to be disadvantaged.
The Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 dealt with the expression “minor procedural or technical error” as it was used in what was formerly s. 188(2) of the Act. While the legislation has been amended, I consider the following observations by the Full Bench as equally applicable to s. 188(5). The Full Bench noted that the assessment of what constitutes a minor procedural or technical error was an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which was not complied with [1]. It also described the purpose of the provision as to allow for the approval of agreements notwithstanding the occurrence of any minor procedural or technical defects[2]. The Full Bench identified the purpose of s. 173(1) as to ensure that all employees are aware that their employer intends bargain for an enterprise agreement and that they are aware of their representational rights.
The Full Bench identified a potential disadvantage to employees if the requirement in s. 173(1) was not followed as employees failing to understand and exercise their representational rights and effectively participate in the bargaining process[3].
I do not regard the error here, the failure to take all reasonable steps to provide each employee with a copy if the NERR, as a minor procedural or technical error. Nor do I consider that the error did not disadvantage employees. The purpose of the NERR is to inform the employees of their representational rights. Those employees who were not provided with the notice did not have an opportunity to inform themselves of those rights and to understand and exercise those rights. What happened at the meeting emphasised not only that this opportunity was not given but there was actual disadvantage to those employees who did not have a copy of the NERR. Had they had it they may have had reference to it and been informed as to whether they wished to participate in the process of nominating a representative, and the manner in which they participated in that process. By reference to the matters contained in the NERR they may have opted not to nominate anyone, they may have nominated themselves, or they may have nominated someone other than the three who had volunteered.
Consequently, I find that RLS did not comply with the requirement in s. 173(1), the failure to do so was not an error that was minor or technical and it disadvantaged employees.
The second concern about the meeting is related. It goes to RLS’s conduct surrounding the nominations for bargaining representatives. I consider that the conduct of RLS at the meeting of 12 July 2024, and in the later communications with employees who were not at the meeting, misled employees as to their right to be represented.
A number of issues arise concerning the meeting and the communications with employees who did not attend the meeting.
The employees were not given prior notice of the purpose of the meeting. In the ordinary course this would not be of concern, but in this case it is clear that RLS conducted the meeting such that the employees were notified of the intention to negotiate an agreement and asked, at the meeting, to nominate a bargaining representative. So much is clear by the provision of the nomination form to each employee present and the time and focus during the meeting on procuring volunteers to be representatives and then having employees nominate one of the volunteers. The failure to notify the employees that the meeting was intended to achieve both of these outcomes gave the employees no time to prepare for the meeting, or seek advice on what might be expected, especially on the question of representation.
The meeting was short. The employees were given little time to consider first the announcement that there would be bargaining for an agreement, second their rights to representation in the bargaining, and third the question of how they would be represented in that bargaining, and fourth to advise the company how they would be represented or by whom. The meeting dealt with a number of employee related topics. That part of the meeting that dealt with the agreement went for no more than an hour. There is some contest in the evidence about what occurred. Despite that, it is clear enough that Ms Fitzgerald informed the employees that there would be bargaining, the company’s reasons for seeking an agreement, and the process that would be followed. She made reference to the NERR, had it handed to employees, and then turned to the exercise of orchestrating the employees’ nominations of bargaining representatives. The latter included leaving the meeting to allow the employees to discuss who they would nominate with the clear expectation that the nominations would be made that day. The meeting proceeded in a fashion that did not allow the employees to fully appreciate their rights and to understand what the options for representation were. By proceedings this way the employees were misled into believing they had to be represented, their representative must be chosen from those who had volunteered and that must decide on the day.
The company’s approach of handing out nomination at the meeting was a clear indication of its expectation that the employees would be making a nomination to be represented by themselves or someone else. The option for those who were members of the union to rely on the default position of having their union represent them was not canvassed. Ms Fitzgerald’s script made no mention of union representation. Mr Mitchell’s evidence was that by reading the NERR Ms Fitzgerald had mentioned union representation. There was a contest as to whether Ms Fitzgerald read the NERR. Even if she did, I am not convinced that this was sufficient to inform the employees that they could simply rely on their union to represent them. Those who were handed the NERR had the information but there was no opportunity to read and digest it. The steps taken at the meeting were directed at the nomination of other employees to be the bargaining representatives.
Ms Fitzgerald proceeded on the basis that those present would fill out a nomination form on that day. A request that the employees take the document away was refused. While the form indicated that employees could represent themselves, Ms Fitzgerald’s conduct in calling for volunteers to be nominated and leaving the meeting to allow the employees to discuss and finalise their nominations demonstrates first an expectation that only a limited number of representatives would be countenanced and second that they would be selected on a collective basis. Ms Fitzgerald’s conduct following the meeting in sending the nomination form electronically to those not present, indicating to those employees that three employees had been ‘voted’ by employees to be the bargaining representatives, and then contacting the employees seeking their nominations indicates an expectation, consistent with the conduct at the meeting, that employees both complete the form, choose one of the employees who had volunteered to be representatives, and return the form promptly.
The language used at the meeting was that the employees were to determine collectively, by ‘voting’, who would be their representatives. Nominations were called for by Ms Fitzgerald. The call for nominations was more akin to seeking candidates to be involved in an election of bargaining representatives by the employees collectively rather than a choice by individuals as to who would be their representative in bargaining. Ms Fitzgerald’s message over Docusign after the meeting referred to a vote having taken place. Ms Fitzgerald’s evidence that once she collated the forms, she returned to congratulate those who were nominated also suggests the process was conducted on the basis that there had been a selection process carried out on a collective basis. The fact that Mr Mitchell did not know who had nominated him and that he understood that he was representing all employees in bargaining also suggests that the process was conducted on a collective basis rather than the exercise of individual rights by each employee to nominate a bargaining representative.
I find that the conduct at the meeting and the communication with employees amounted to RLS misleading the employees by words and actions as to their right to be represented by a bargaining representative. The employees were led to believe that they must nominate a bargaining representative. The capacity to not nominate and be represented by their union, or by no one at all, was not explained. They were required to do so immediately. The conduct of the ‘vote’ at the meeting also misled the employees into choosing from a small group of candidates to represent them. The message exchanges with the employees following the meeting were misleading in a similar fashion.
Misleading employees as to their representational rights is a matter dealt with in the statement of principles made under s. 188B at principle 3. and I am required to take it into account by s. 188(1) in determining the issue of whether there was genuine agreement for the purposes of s. 186(2)(a). Taking into account the manner in which the meeting on 12 July 2024 was conducted and the communisations to employees following the meeting I find that RLS misled the employees about their representational rights. I am not satisfied that the requirement in s. 186(2)(a) is met.
Conclusion
I am not satisfied that the Agreement has been genuinely agreed to by the employees covered by it. I find that the requirement in s. 173(1) that each employee be given a NERR was not met. I also find that the employees were misled about their representational rights.
As I am not satisfied the requirement in s. 186(2)(a) is met there is no need to consider the CFMEU’s third objection about the manner in which the agreement was later explained to the employees.
The application is dismissed.
DEPUTY PRESIDENT
[1] At [55]
[2] At [67]
[3] id
Printed by authority of the Commonwealth Government Printer
Appearances:
S. Rodgers of counsel appeared for the applicant
P. Boncardo of counsel appeared for CFMEU
Hearing details:
2024.
26 November 2024.
Sydney
<PR784375>
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