Singleton Pre-School Inc

[2022] FWC 2354

[2022] FWC 2354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Singleton Pre-School Inc

(AG2022/3309)

DEPUTY PRESIDENT COLMAN MELBOURNE, 5 SEPTEMBER 2022

Application for approval of an enterprise agreement – application dismissed

1. Singleton Pre-School Inc (applicant) has made an application under s 185 of the Fair Work Act 2009 (Act) that asks the Commission to approve the Singleton Preschool Teachers’ Enterprise Agreement 2022 (Agreement). The application is opposed by the Independent Education Union of Australia (IEU), a bargaining representative for the Agreement, on the basis that the applicant did not comply with the preapproval requirements in s 180 of the Act.

1. Before the Commission can approve an enterprise agreement, it must be satisfied that various statutory requirements have been met. One of these is the requirement that an agreement has been ‘genuinely agreed’ to by employees covered by the agreement (s 186(2)(a)). An enterprise agreement has been ‘genuinely agreed’ to if the Commission is satisfied, among other things, that the employer complied with the preapproval steps in ss 180(2), (3) and (5) (see s 188(1)(a)(i)). I am not satisfied that the applicant complied with these requirements.

1. First, s 180(3) states that an employer must take all reasonable steps to notify the relevant employees, by the start of the ‘access period’ for a proposed enterprise agreement, of the time and place at which the vote on the agreement will occur, and of the voting method that will be used. The ‘access period’ is the seven-day period ending immediately before the start of the voting process (see s 180(4)). This means that employees are to receive the voting details seven clear days before the start of the vote. The applicant confirmed at the hearing that employees were advised of the voting details on the same day that the vote commenced. It appears that the applicant mistakenly believed that the voting period must last for seven days.

1. Secondly, s 180(2) states that an employer must give employees a copy of the agreement during the access period or ensure that employees have access to the agreement throughout that period (s 180(2)). In its F17 declaration, in answer to a question about s 180(2), the applicant stated that on 3 June 2022 all staff were informed where ‘information’ could be located. Two employee representatives who attended the hearing said that the meeting on 3 June 2022 was a bargaining meeting, and that at no time were they given a copy of the Agreement or access to it. The applicant did not dispute this. The applicant appears to have made the current enterprise agreement available to employees rather than the proposed agreement. I find that the applicant did not comply with the requirement in s 180(2).

1. Thirdly, s 180(5) requires employers to take all reasonable steps to ensure that the terms of the agreement and the effect of those terms were explained to employees. In its F17 declaration, the applicant stated that on 26 May 2022 it emailed two representatives to ‘inform of the decision’, and that ‘information was explained in [a] meeting with regards to the % decision based on budget requirements and future forecasting.’ But the Agreement had not yet been finalised on 26 May 2022. The two employee representatives said at the hearing that the final agreement was not explained to them at any time. The applicant acknowledged that this was the case. The applicant therefore did not comply with the requirement in s 180(5).

1. Making an enterprise agreement is a serious undertaking. The agreement will apply to all current and future employees within its scope. It displaces the application of the award safety net to those employees. The Commission must be satisfied that employees genuinely approved the agreement on which their employer requested them to vote. The requirements in ss 180 and 188 are part of a bargaining scheme that requires employees to be given a reasonable opportunity to make an informed decision about whether to approve an agreement. Employees are to receive notice of the vote, a copy of the agreement or reasonable access to it, and a reasonable explanation of the terms of the agreement and their effect.

1. The applicant’s omissions were errors. Previously, the union has been involved in bargaining and presumably had a role in the preapproval process. On this occasion, the union was not involved. However, I am not satisfied that in all the circumstances the errors were ‘minor procedural or technical errors’ for the purpose of s 188(2), or that employees were not likely to have been disadvantaged by the errors. In my view employees were not given a reasonable opportunity to make an informed decision about whether to approve the Agreement. Consequently I am not satisfied that the Agreement has been genuinely agreed within the meaning of s 188(1). The application for approval of the Agreement is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Reakes for the applicant
N. Bent for the IEU

Hearing details:

2022
Melbourne
5 September

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