Royal Adelaide Golf Club

[2020] FWC 6869

[2020] FWC 6869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Royal Adelaide Golf Club
(AG2020/3513)

COMMISSIONER PLATT ADELAIDE, 18 DECEMBER 2020

Application for approval of the Royal Adelaide Golf Club Enterprise Agreement 2020-2024.

[1] An application has been made for approval of an enterprise agreement known as the Royal Adelaide Golf Club Enterprise Agreement 2020-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Royal Adelaide Golf Club (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 2 December 2020.

[3] On 4 December 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking. The issues raised included a number of pre-approval issues including:

•  The inclusion of additional material in the Notice of Employee Representational Rights (NERR)

•  The vote notification process and its impact on the access period

•  The sufficiency of the Agreement explanation

•  The voting eligibility of casual employees who were not employed during the ballot period

•  The late lodgement of the Application

[4] I advised the Applicant that I would consider the pre-approval issues first.

[5] The Applicant provided written submissions in support of its position that any deficiency could be remedied under s.188(2) of the Act, and sought that I determine the matter on the papers.

[6] The material submitted by the Applicant included a Statement/Submission from Mr Andrew Gay (General Manager) and copies of relevant correspondence. I have also reviewed the material filed by the Applicant.

[7] The information provided indicated that the Applicant was seeking to consolidate three existing enterprise agreements (Hospitality, Clerical and Greenkeeping) into one Agreement and that a previous attempt to have an Agreement approved in 2019 failed due to better off overall test (BOOT) issues.

[8] The Applicant asserted that it made a genuine effort to notify all employees of the Agreement approval and voting process and provided a copy of the Agreement and a summary of changes document on several occasions for the required period before the vote and also during the voting period, and that the Agreement had been genuinely agreed to by the employees. A review of the material before me indicates the following.

[9] The Form F17 Statutory Declaration advises:

•  Employees were emailed a summary of the changes on 18 September, 17 October and 28 October 2020.

•  On 17 October 2020, employees were emailed information on voting and a link was provided to vote online.

•  The ballot commenced on 17 October 2020 and concluded on 30 October 2020.

•  Of the 50 employees covered by the Agreement, 31 cast a vote. 20 of the employees were employed on a casual basis.

[10] The Application was received by the Commission on 18 November 2020.

[11] The correspondence indicates that on 18 September 2020, Mr Gay emailed the staff attaching a summary of key changes and the text of the proposed Agreement. On the topic of the conduct of the vote, recipients were advised ‘Voting will take place within the next two weeks and I will be distributing voting packs shortly.’

[12] The next communication was emailed by Mr Gay on 17 October 2020 and was titled ‘Voting for RAGC EBA now open’. The communication advised employees that the access period had commenced and attached a copy of the Agreement and a summary of changes and asked the recipients to carefully consider the Agreement and decide how they would vote and that voting takes place between the dates of 17 October 2020 and 5.00pm on 30 October 2020 and provided a link to the online voting process.

[13] The Applicant also provided a copy of the NERR distributed on 27 August 2020.

Relevant Case Law

[14] The Applicant appropriately concedes that there are some procedural defects and seeks the Commission exercise its powers under s.188(2) of the Act.

[15] It is open to the Commission, as stated in s.188(2)(a) and (b) of the Act, to be satisfied that an enterprise agreement was genuinely agreed to but for a minor procedural error and if the employees covered by the agreement were not likely to be disadvantaged by the error.

[16] In relation to the phrase ‘minor error’ the recent Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman) 1set out the following principles:

“[117] …

6. What constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. Table 2 at [74] above examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

7. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period (say 6 days before the start of the voting process) is likely to be a ‘minor error’ in most cases. But it will depend on the circumstances. If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’. Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the agreement is, in effect, a ‘roll over’ agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.

8. Whether an incidence of non-compliance is characterised as a ‘minor error’ also depends on the nature of the requirement which has not been complied with.”

[17] In relation to whether employees covered by the agreement were not likely to have been disadvantaged by the error, the Full Bench in Huntsman stated:

“[117] …

10. The test in s.188(2)(b) is whether the employees covered by the agreement were ‘not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174’(emphasis added). The impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of ‘genuine agreement’.

11. Cost or inconvenience to the employer and employee covered by an agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement ‘were not likely to be disadvantaged by the errors’.

12. The test posited by s.188(2)(b) is whether ‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’.

13. The word ‘likely’ in s.188(2(b) means ‘probable’ in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.

14. In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.”

Content of the NERR

[18] The NERR distributed by the Applicant differs from the NERR contained in Regulation 2.05 in the following respects:

•  Inclusion of the Applicant’s letterhead.

•  Inclusion of a heading ‘IMPORTANT INFORMATION RE: PROPOSED ENTERPRISE AGREEMENT FOR STAFF EMPLOYED BY THE ROYAL ADELAIDE GOLF CLUB INC’.

•  The modification of the first paragraph.

•  The modification of the last paragraph which deleted the reference to the ability to contact the Fair Work Ombudsman or the Fair Work Commission. The reference to the employer in generic terms was replaced by a reference to Mr Andrew Gay and Mr Denis Kildare from Clubs SA.

•  The addition of a signature block of Mr Gay.

[19] It is clear to me that the Applicant has not complied with s.173(3) of the Act.

[20] Whilst some of these changes are capable of being described as minor technical errors - the removal of the references to the Fair Work Ombudsman and the Fair Work Commission as sources of advice cannot be so described. The effect of these changes was to remove any reference to an independent source of information. Even if this was a minor technical error, it clearly has the potential to disadvantage employees.

Access Period and Provision of Information relating to the Ballot

[21] The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process to approve the proposed enterprise agreement. The access period consists of seven clear calendar days. 2

[22] Section 180(3) of the Act requires the employer to 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, and (b) the voting method that will be used.

[23] In my view, Mr Gay’s communication of 18 September 2020 did not trigger the access period as it did not contain sufficient information to determine the date of the vote. Whilst it could be argued that the reference to the next two weeks was sufficient, as it turned out the vote did not commence until a month after this advice was provided.

[24] Mr Gay’s communication of the 17 October 2020 did not permit any access period as it was advice that the voting period had already commenced.

[25] The Applicant’s manner of conducting the vote had the effect of removing the access period – in my view, this is not a minor or technical error. The process also failed to provide any notice of the actual vote.

[26] On the basis of the findings above, the pre-approval requirements in the Act have clearly not been met and there is no need to consider the remaining issues with the Agreement. The application for approval of the Agreement is therefore dismissed.

[27] As an aside, it appears that two casual employees who were not engaged in the voting period were allowed to cast a ballot. Whilst this issue is not determinative in this matter, it appears that the Applicant has permitted non-eligible employees to participate in the voting process. 3

[28] I would encourage the Applicant to review the Commission’s Enterprise Agreement Benchbook available online before making any future application.

COMMISSIONER

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 1   [2019] FWCFB 318

 2   Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732

 3   Shop, Distributive and Allied Employees Association and Kmart Australia Limited and Australian Workers’ Union [2019] FWCFB 7599