Shape Shopfitters Pty Ltd
[2013] FWC 3161
•21 MAY 2013
[2013] FWC 3161 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Shape Shopfitters Pty Ltd
(AG2013/6045)
DEPUTY PRESIDENT GOOLEY | SYDNEY, 21 MAY 2013 |
Application for approval of Shape Shopfitters Pty Ltd Enterprise Agreement 2013-2017.
[1] Shape Shopfitters Pty Ltd lodged an application for approval of the Shape Shopfitters Pty Ltd Enterprise Agreement 2013-2017 (the Agreement). The Agreement was approved by employees on 11 April 2013. The notice of representational rights was issued to employees on 22 February 2013.
[2] Accompanying the application for approval was a statutory declaration sworn by Mr Wayne Billings and attached to the application was a document which contained the content prescribed by regulation Schedule 2.1 of the Fair Work Regulations 2009. Attached to that document was a form1. Employees were asked to sign and return the form to the employer. The form provided for employees to advise their employer of one of three options:
[ ] I am a member of an employee organisation and elect my default bargaining representative.
[ ] I appoint myself as the bargaining representative.
[ ] I appoint [insert name] to represent my interests as bargaining agent in the negotiations for an enterprise agreement.
[3] On 18 April 2013 I wrote to the Applicant’s representative, the Master Builders Association of Victoria (MBAV) and the employee bargaining representative and advised them that I was concerned the notice of representational rights did not comply with section 174(1A) of the Fair Work Act 2009 (FW Act) and further that the notice advised employees that if they wished their union to be their default bargaining representative they must advise their employer. This raised questions of whether the employees had genuinely agreed to the agreement.
[4] I received a response from the MBAV but as I was not satisfied with the response the application was listed for hearing on 2 May 2013. At that hearing Mr Daniel Hodges of the MBAV appeared with representatives of the company, Ms Lumi Catrina and Mr Wayne Billings and the employee bargaining representative Mr Steve Allen.
[5] At the hearing it was submitted that:
(1) employees were given two separate documents.
(2) employees knew that completing the form was not the only way they could appoint a bargaining representative; they knew these options were voluntary; and there was no requirement that the form be returned.
(3) the employees all choose to select someone to be their bargaining representative.
(4) since then the employer has learnt that none of the employees are members of a union.
(5) the document is a pro forma and has been used before and the issue has not been raised before. Reference was made to the approval of Cornerstone Constructions Enterprise Agreement 2012-20162, which was approved by me on 3 January 2013.
Legislative Framework
[6] On 1 January 2013 the following amendment to the FW Act took effect and applied to notices of representational rights issued after the part commenced:
“8 After subsection 174(1)3
Notice requirements
(1A) The notice must:
(a) contain the content prescribed by the regulations; and
(b) not contain any other content; and
(c) be in the form prescribed by the regulations.
(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.”
[7] The Explanatory Memorandum to the Fair Work Amendment Act 2012 said as follows:
“This amendment responds to Panel recommendation 19. The amendment is intended to eliminate confusion about whether employers may modify the content or form of the notice of employee representational rights. The amendment would make clear that the notice must contain only the content prescribed by the regulations and no other content except that which the regulations require an employer to insert or omit.”4
[8] The Fair Work Act Review5 discussed the effectiveness of the notice employee representational rights. The review expressly referred to the decision of the Full Bench of Fair Work Australia in Galintel Mills Pty Ltd t/a The Graham Group6 which considered a bargaining notice which had at the bottom of the notice a slip which employees could fill in to appoint a bargaining representative. The Full Bench said as follows:
“[41] There can be no doubt that the notice issued to employees in this case contained every word required by the Regulations. The question is whether the addition of the slip at the bottom of the notice altered its nature such that it ceased to be a valid notice under s173. The Commissioner said that the addition of the slip meant that the notice did not allow employees to determine freely whether to appoint an employee bargaining representative or allow them to appoint a representative at any time while a representative could be appointed.
[42] The AMWU contends that the slip makes completion of the slip mandatory, it is misleading because it infers that representatives can only be appointed in this manner, it is misleading because it infers that the union can only be appointed by returning the slip to the Manufacturing Manager and this constitutes an improper influence over the selection of bargaining representatives. The AMWU contends that the slip omits certain words that could have alleviated the concerns.
[43] On our consideration of the slip these concerns are overstated and do not give rise to the conclusion that the notice is invalid. The slip is set out in full in paragraph [9] above. It is expressed as a request, not a mandatory requirement. It is contained on the same page as the statutory notice which states that a union will be a bargaining representative of union members unless the employee appoints another person. It is otherwise expressed in neutral terms allowing complete freedom to complete it and to appoint any bargaining representative of the employee’s choice.”7
[9] The Review Panel recommended that:
“Section 174 be amended to provide that a bargaining notice must address only the matters specified in that section and the regulations made under it.”
Issues for determination
[10] The question that needs to be determined is whether, by providing the employees a document that complies with the regulations and at the same time another document with additional content, is sufficient to overcome the mandatory requirements of s174(1A).
[11] There is no doubt that in Galintel where the notice of representational rights provided to the employees contained the content required by the FW Act and regulation plus a tear off slip which was to be used to advise employers of their bargaining representative contained other content and as such it would not comply with section 174(1A).
[12] In my view it would make the amendment to the FW Act otiose and defeat the purpose of the legislative change if all that was required was that the additional content be included in a separate document provided to employees at the same time as a document which set out the matters required by the FW Act and regulations.
[13] In my view the two documents provided to employees combined comprise the notice of representational rights. As the notice of representational rights contains additional content it does not comply with section 174(1A). As a consequence no notice of representational rights was provided to employees and the application for approval must be dismissed.
[14] In any event, the notice in this case is substantially different to the notice considered by the Full Bench in Galintel. The notice in Galintel was a nomination form. Here the document required employees who were union members to advise their employer in writing that they wished their union to be their default bargaining representative. This information is in direct conflict with the information required to be included in the notice of representational rights. There is no requirement in the FW Act that employees advise their employer of their union membership to enable their union to be their default bargaining representative.
[15] It is not relevant that the employer understands that none of the employees are union members. The notice provided to employees, at the commencement of bargaining, informs employees of how they may be represented. It informs both union and non union members that should they wish to have a union as their default bargaining representative they must be a member of the union. Further there is no obligation on the employees to advise their employer of their union membership. Both union and non union members are able to decide if they want union representation. Of course non union members would need to join the union for the union to be their default bargaining representative.
[16] Further it is not relevant that the employees all chose another bargaining representative. The employees did so after they were given misleading information. It is not possible to determine what would have occurred had they been provided with the notice as required by the FW Act.
[17] The Applicant sought to rely upon the approval of other agreements where the same notice was provided to employees. In particular, reference was made to the approval of the Cornerstone Constructions Enterprise Agreement 2012-2016. That Agreement was made prior to 1 January 2013.
Schedule 11 Part 4 section 8 provides as follows:
“(1) The amendments made by Part 5 of Schedule 4 to the amending Act (which is about notice of employee representational rights) apply in relation to notices of employee representational rights that are given after the commencement of that Part.
(2) Regulations that:
(a) were made for the purposes of subsection 174(6) before the commencement of Part 5 of Schedule 4 to the amending Act; and
(b) were in force immediately before that commencement;
continue in force (and may be dealt with) after that commencement as if they had been made for the purposes of subsection 174(1A) (as inserted by Part 5 of Schedule 4 to the amending Act).”
[18] Therefore the decision to approve the Cornerstone Constructions Enterprise Agreement 2012-2016 was made in the context of a different legislative framework.
[19] I have found that the notice of representational rights provided to the employees was not a notice of representational rights as required by the FW Act.
[20] Section 188 provides that the FW Act must be satisfied that the employees genuinely agreed to the agreement as follows:
“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 the FWC 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.”
[21] The majority of the Full Bench said in Oswald Bros Pty Ltd v CFMEU8 of section 188
“[80] Section 188 of the Act does not provide a wide general discretion for determining whether employees have genuinely agreed to an enterprise agreement focussed at the point of approval. Rather it requires specific actions to have been undertaken (in ss.188(a) and (b) at specified times in advance of approval), with s.188(c) then requiring satisfaction that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. Section 188(c) of the Act, although itself a broad discretionary consideration, is an additional matter about which Fair Work Australia needs to be satisfied and relates to grounds other than those arising in relation to the ss.188(a) and (b) matters.”
[22] As no notice of the prescribed kind was provided to employees the employer did not comply with section 181(2) and therefore the agreement cannot be approved. The application is therefore dismissed.
DEPUTY PRESIDENT
Attachment 1
Appointment of Representative for EBA negotiations.
[Name of employer]
wants to ensure that all employees are aware of and understand their rights to representation. Therefore we ask that you reply and advise how you wish to exercise those rights.
I
[insert name]
have received notice of my representational rights and advise the following:
[Please tick the appropriate statement]
[ ] I am a member of an employee organisation and elect my default bargaining representative.
[ ] I appoint myself as the bargaining representative.
[ ] I appoint [insert name] to represent my interests as bargaining agent in the negotiations for an enterprise agreement.
Please return this to [insert name] at your earliest convenience.
Employee Signature:
Date:
1 See attachment 1 to this decision.
2 [2013] FWCA 43
3 Fair Work Amendment Act 2012
4 Fair Work Amendment Bill 2012 Explanatory Memorandum at [147]
5 Towards more productive and equitable workplaces - An evaluation of the Fair Work Legislation at page 144
6 [2011] FWAFB 6772
7 Ibid at [41]-[43]
8 [2012] FWAFB 9512 at [80]
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