Shop, Distributive and Allied Employees Association (SDA)

[2016] FWCA 1363

[2016] FWCA 1363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shop, Distributive and Allied Employees Association (SDA)
(AG2016/75)

DICK SMITH DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2015-2017

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COMMISSIONER ROE	MELBOURNE, 2 MARCH 2016

Application for approval of the Dick Smith Distribution Centre Enterprise Agreement 2015-2017.

[1] An application has been made for approval of an enterprise agreement known as the Dick Smith Distribution Centre Enterprise Agreement 2015-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the SDA who were a bargaining representative for the Agreement. The Agreement is a single enterprise agreement.

[2] The circumstances of this matter are most unusual. Bargaining commenced for a replacement for the current agreement, Dick Smith Distribution Centre Enterprise Agreement 2012-2015, on 11 September 2015. A valid notice of representational rights was provided to employees at that time. There is uncontested evidence from the SDA that following the successful negotiation of the Agreement the effect of the Agreement was explained to employees by the SDA organiser, Mr Bourke, using a document prepared by Mr Smith the SDA State Secretary. Mr Smith and Mr Bourke had been involved in the negotiations for the Agreement.

[3] There was correspondence between SDA and the employer, Dick Smith Electronics Pty Ltd, about the process for the conduct of a ballot for the Agreement. Employees were provided with a notice which specified the time, place and process for the ballot. As had occurred on previous occasions there was agreement that the ballot be conducted by the SDA delegate on 6 January 2016. Originally it was hoped that the ballot could be held during the Christmas New Year period but this proved logistically impossible and so the ballot was deferred to 6 January 2016. I am satisfied that Dick Smith Electronics determined to hold the ballot on 6 January 2016 and that Dick Smith Electronics advised employees with more than seven days’ notice of the time, place and process for the ballot. I am satisfied that Dick Smith Electronics approved the ballot being conducted by the SDA delegate on 6 January 2016.

[4] The ballot was conducted at 1.30pm on 6 January 2016 and a majority of the 31 employees who would be covered by the Agreement and who were employed at the time voted to approve the Agreement. All 26 of those who voted, voted in favour of the Agreement.

[5] I am satisfied by the evidence of the SDA that the Agreement was made and genuinely agreed to.

[6] Two days before the ballot, on 4 January 2016, receivers were appointed for Dick Smith Electronics Pty Ltd. This was announced to staff on 5 January 2016. Mr Smith spoke to Rod Guthrie who was the lead negotiator for the Agreement for the company. Mr Smith says that Mr Guthrie told him that “it was still business as usual and so yes the ballot should go ahead.”

[7] I accept the unchallenged evidence of Mr Smith that neither he nor Mr Bourke received any request prior to the ballot to stop the ballot. I also accept that Mr Smith and Mr Bourke were the SDA officials responsible for the Agreement negotiation and that this was well known to Dick Smith Electronics Pty Ltd. Mr Smith did receive a phone message from a Ms Martino who is an employee of Dick Smith Electronics Pty Ltd to discuss the ballot on either 5 January 2016 or 6 January 2016. Mr Smith was on leave at that stage and Ms Martino did not leave a contact number so he was unable to return the call.

[8] The Receivers, Ferrier Hodgson, advised FWC in writing that Ms Fairhurst of Ferrier Hodgson and Ms Martino of DS Electronics requested a delay in the ballot. They claim to have done this in a telephone conversation with Ms Rebecca Patena of the SDA national office on 6 January 2016, the day of the ballot. There is no evidence of whether or not this conversation occurred prior to or after the ballot. There is no evidence before me of the detail of what was said in this conversation. Ferrier Hodgson do not suggest that Ms Patena agreed to anything in the conversation. I am satisfied from the evidence of Mr Smith that Ms Martino was aware that the persons in the SDA responsible for the Agreement and the ballot were Mr Smith, the SDA State Secretary, and Mr Bourke. I am not satisfied that Ms Patena had any involvement or authority.

[9] Ferrier Hodgson and Dick Smith Electronics Pty Ltd were advised of the hearing of this matter on 1 March 2016. They were requested to provide by a specified date prior to the hearing “any evidence upon which they relied” and “information necessary to consider the application in the event that FWC determines that it was validly made, in particular the information relating to the matters raised in the F17 Form”. Ferrier Hodgson in their response of 29 February 2016 advised that they did not wish to add to their earlier correspondence and “neither the Receivers nor DS Electronics propose to lead any additional evidence and rely upon the above correspondence”. The Receivers also provided the information usually contained in the F17 Form but it was not sworn as a statutory declaration. “The reason for this is that much of the information contained in the Form F17 is information that has been provided to me directly by DS Electronics or by the SDA.” The Receivers went on to advise that they had no reason to doubt the veracity of the information. The Receivers advised that they did not wish to provide any further evidence or submissions and they did not propose to attend the hearing. (Exhibit E3 Correspondence of Ferrier Hodgson of 29 February 2016)

[10] I am satisfied that the all the pre-approval steps for the approval of the Agreement have been satisfied, that the application was properly made by the SDA in accordance with Section 185(1) of the Act and that the Agreement was validly made and that there was genuine agreement. I am satisfied that the employer authorised the ballot on 6 January 2016 and did not take any effective steps to stop the ballot. The arrangements and authorisation for the ballot was between the company representatives and Mr Smith, the SDA State Secretary. If those arrangements were to be undone then there needed to some clear communications with Mr Smith. Mr Smith is the most senior officer of the union in the NSW Branch. The Agreement is confined to NSW. I am satisfied that there was no clear communication with Mr Smith withdrawing the notice of the ballot. In these circumstances I am satisfied that the ballot was authorised by the employer and the Agreement was made as result of that ballot.

[11] The scope of the Agreement is restricted to storepersons classifications at the Sydney distribution centres. I am satisfied that this scope is fairly chosen because it is geographically and operationally distinct.

[12] I am satisfied that there are no BOOT and NES issues and no unlawful terms.

[13] As such, and subject to the issue I deal with below,I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[14] The only remaining issue is whether or not I can approve the Agreement in the absence of a signed copy of the F17 Statutory Declaration. I am satisfied that I have the information which would otherwise be contained in the F17 Statutory Declaration. The Receiver has said that they have no reason to doubt the veracity of the information.

[15] The legislation is clear: if an Agreement is made then an application for approval must be made within 14 days. The mandatory requirement for an application to be made suggests a legislative intent that an Agreement that is made should be considered by FWC for approval. The legislation provides as follows:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.
(1A) Despite subsection (1), if the agreement is a multi-enterprise agreement that is a greenfields agreement, the application must be made by:
(a) an employer covered by the agreement; or
(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.

[16] The rules for the declarations provided for in Section 185(2)(b) are found in Rule 24 of the Fair Work Work Commission Rules 2013. The rule provides for the F17 Statutory Declaration. However, Rule 6 provides as follows:

6 Dispensing with rules and orders inconsistent with rules

 (1) The Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliance arises.

(2) The Commission may make an order that is inconsistent with these Rules and if it does so, the order will prevail.

[17] I am therefore satisfied that I can, in an exceptional circumstance of this type, waive the requirement for the F17 form to be signed by the employer as a statutory declaration. The capacity to waive this requirement was approved by the Full Federal Court in Australian Nursing and Midwifery Federation and Kaizen Hospitals (2015 FCAFC 23. Judgement of Justices Buchanan and Jagot at paragraphs 98 and 99)

[18] The Act describes the following as the basic rule.

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
”

[19] This is the only reference to Section 185 in Sections 186, 187 and 188 which cover the requirements for approval of the Agreement. The Full Court found that “The specific requirements of Section 186 must be assessed by reference to the circumstances at the time the agreement is made” and not at the time the application is made. The Full Federal Court found that it is not open to employers to “seek to frustrate the statutory scheme” by failing to provide relevant documentation. (2015 FCAFC 23 Paragraph 133)

[20] The SDA being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[21] The Agreement was approved on 2 March 2016 and, in accordance with s.54, will operate from 9 March 2016. The nominal expiry date of the Agreement is 30 June 2017.

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