Spark & Cannon Australasia Pty Limited T/A Spark & Cannon
[2019] FWCA 5191
•13 AUGUST 2019
| [2019] FWCA 5191 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Spark & Cannon Australasia Pty Limited T/A Spark & Cannon
(AG2018/4924)
SPARK & CANNON AUSTRALASIA PTY LIMITED NATIONAL ENTERPRISE AGREEMENT 2018
Clerical industry | |
DEPUTY PRESIDENT KOVACIC | CANBERRA, 13 AUGUST 2019 |
Application for approval of the Spark & Cannon Australasia Pty Limited National Enterprise Agreement 2018.
[1] An application was made on 30 August 2018 for approval of an enterprise agreement known as the Spark & Cannon Australasia Pty Limited National Enterprise Agreement 2018 (the Agreement). The application was made by Spark & Cannon Australasia Pty Limited T/A Spark & Cannon (S&C) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
[2] The Fair Work Commission (the Commission) wrote to S&C wrote in December 2018 and February 2019 raising a number of issues regarding the Agreement. S&C proffered several undertakings in response to the issues raised by the Commission. Those undertakings and S&C’s response more generally addressed most of the issues raised by the Commission. However, in light of S&C’s response the Commission was concerned that S&C may not have complied with the pre-approval step set out in s.180(2) of the Act.
[3] Against that background on 22 February 2019 my chambers wrote in the following terms to the S&C and the various bargaining representatives listed in the Form F16 – Application for approval of an enterprise agreement (other than a greenfields agreement):
“Good afternoon
As per the Notice of Listing sent today, this application has been listed for a telephone hearing before Deputy President Kovacic on Monday 18 March 2019 at 2pm.
Please be advised that during this hearing the Deputy President will be seeking submissions from the parties regarding whether a minor procedural or technical error occurred for the purposes of s.188(2)(a) of the Fair Work Act 2009 (Cth) when employees did not have access to the revised agreement for the 7 days prior to the vote commencing.
The above issue is in addition to the issues raised in the correspondence sent on 22 March 2019 by the Commissions’ Agreements Team.
If parties wish to provide written submissions in advance of the hearing, please provide them electronically to Chambers ([email protected]) by COB 11 March 2019.” (Emphasis as per original)
[4] S&C provided written submissions on 6 March 2019, with the application the subject of a telephone hearing on 18 March 2019. Attending the hearing for S&C were Mr Matthew Fowler, Managing Director; Mr Matthew Robinson, National People Manager; and Ms Melissa Mustafa, Leader of People, Performance and Culture. Ms Emily Callachor, an Organiser with the Australian Municipal, Administrative, Clerical and Services Union (ASU), appeared for the ASU which was a union bargaining representative for the Agreement. Also appearing were employee bargaining representatives, Ms Vicki Moller, Mr Carl Purcell and Mr Alexander Chard.
The Applicant’s case
[5] In its written submissions S&C provided an overview of the various steps taken in the lead up to the vote on the Agreement in August 2018. Key steps included the following:
• the seven day access period which commenced on 11 July 2018 when a proposed Agreement was sent to employees;
• the vote on that proposed Agreement which opened on 18 July 2018;
• on 31 July 2018 an employee bargaining representative identified that the Saturday overtime clause in the proposed Agreement was not consistent with what had been agreed in bargaining, with an email sent to all employees on 1 August 2018 advising them of this and cancelling the vote – the email read as follows:
“It has been brought to our attention a discrepancy in the overtime clause of the proposed agreement. For this reason we will be cancelling the vote effective immediately.
We will be working with the employee consultancy group to resolve this discrepancy, which will involve another vote. As soon as more information is available we will provide you with an update”;
• discussions aimed at correcting the error which subsequently occurred involving S&C and bargaining representatives;
• on 8 August 2018 the Agreement, which contained the more beneficial Saturday overtime provision, was provided to employees – the email read as follows:
“As per the email I sent on 1st August there was a misunderstanding in the agreement in regards to the proposed overtime and ordinary hours applicable to Saturday morning. The intention during the negotiations was for the proposed agreement to be consistent with the Award.
We, delegates and management, have sorted through this error and have attached the updated agreement to be presented for vote today.
There have been changes to the overtime, ordinary hours and voluntary additional hours clauses. I want to highlight the major change below:
Item | Previously Proposed Item | Updated Clause | Benefit |
Saturday Overtime | Saturday morning was to be considered as ordinary hours for Transcriptionists, Quality Assurance Checkers and Administrative employees and paid at normal rates. | If Saturday morning is part of your agreed roster, payment will be made at the rate of time and quarter for hours worked between 7:00am and 12.30pm. If overtime is offered on Saturday and you have worked your agreed rostered hours during the week, you will be paid at the rate of time and half for the first 4 hours and double time thereafter. If you have not worked your agreed rostered hours during the week the hours worked between 7:00am and 12.30pm Saturday will be at the rate of time and quarter until you have reached your agreed rostered hours for the week and then time and half for the next 4 hours and double time thereafter. | Penalty rates will apply to Saturday work between 7am and 12.30pm if an employees’ ordinary hours falls during this time period. Equivalent overtime rates in the 2011 NEA will apply to employees who have worked their agreed rostered hours before working on a Saturday. |
With the updates to this agreement we will aim to restart the voting period commencing today 8 August, running for two weeks until Wednesday 22nd August closing at 5pm. The voting process will be the same as last time, an email sent from VoteAbout to the email address where you receive your payslips.
If you have any queries about this change please get in contact with either Carl Purcell (Transcriptionist), Vicki Moller (Monitor), Alex Chard (Checker), as your employee representatives or, alternatively contact myself or Matthew Fowler”; and
• an email was sent to all employees on 9 August 2018 advising that voting on the Agreement was open for a period of two weeks, with reminder emails sent on 15, 22 and 23 August 2018.
[6] S&C acknowledged in its written submissions that it did not provide employees with an additional seven day access period when the Agreement (i.e. the corrected agreement) was circulated to employees on 8 August 2018 . However, S&C contended that no employees had been disadvantaged in the voting process as the vote was open for two weeks and even if the first seven days of that period were allocated as an access period that would have left another week for voting, adding that all employees had access to vote during that time.
[7] At the telephone hearing Ms Mustafa advised that up until June 2018 she had been S&C’s representative on the bargaining committee, adding that prior to proceeding on maternity leave she left instructions as to the timeframes for circulation of the Agreement to employees. Ms Mustafa acknowledged that a second access period had not been provided to employees and that this was a definite error on the part of S&C. However, Ms Mustafa highlighted that the changes made to the Agreement benefited employees and expressed the view that no one had been disadvantaged in the absence of a second access period. In response to an invitation from the Commission as to whether in the circumstances the somewhat low voter turnout and majority of one in support of the Agreement raised questions as to whether the Agreement had been genuinely agreed to, Ms Mustafa responded that:
• employees understood that they were quite well off under the Agreement;
• she could not think of any clauses which were less advantageous to employees than the predecessor agreement; and
• it was possible that the low voter turnout was because employees assumed everything was OK with the Agreement.
The views of bargaining representatives
[8] Ms Callachor submitted that the ASU had no issue regarding the absence of a second access period, adding that no employees had been disadvantaged. Ms Callachor was unable to provide the ASU’s views on the undertakings proffered by S&C.
[9] Ms Moller submitted that she was unaware of the requirement for another access period and that she agreed with Ms Mustafa that the revised clause was of advantage to employees and that several reminders were sent to employees regarding the vote. Ms Moller advised that she was happy with the undertakings proffered by S&C.
[10] Both Mr Purcell and Mr Chard stated that they had nothing to add to what had previously been put by others.
Consideration of the issues
[11] Section 188 of the Act deals with when employees have genuinely agreed to an enterprise agreement and provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
(1) 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) ...
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
(2) An enterprise agreement has also been genuinely agreedto by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) 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.
[12] In this case it is not disputed that on 8 August 2018 S&C circulated the Agreement to employees who would be covered by it with the Agreement correcting the error identified in the earlier version of the proposed Agreement circulated to employees on 11 July 2018. It is also not disputed that the vote on the Agreement commenced on 8 August 2018 without employees having had access to that version of the Agreement throughout the access period for the Agreement, i.e. the 7-day period ending immediately before the start of the voting process. This is inconsistent with s.180(2) of the Act. Questions also arise as to whether the revised proposed Agreement was genuinely agreed to by employees in circumstances where 105 of the 201 employees who would be covered by the Agreement cast a valid vote in respect of the Agreement, with 53 employees voting to approve the agreement and 52 employees voting against the Agreement.
[13] In that regard I note following:
• the initial version of the Agreement was circulated to employees on 11 July 2018, with the vote commencing on that version of the Agreement on 18 July;
• the email of 8 August 2018 clearly sets out the correction made to the proposed Agreement;
• the correction is beneficial to employees;
• none of the bargaining representatives expressed a concern that employees had been disadvantaged by the absence of a second access period regarding the revised proposed Agreement.
[14] In short, the overwhelming content of the Agreement would have been unchanged since 11 July 2018 when the document was first circulated to employees. Further, there is nothing before the Commission to suggest that the somewhat low voter turnout and slim majority in support of the Agreement was in any way related to the absence of a second access period prior to the vote recommencing on 8 August 2018.
[15] Against that background and having regard to the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics and Others 1, I am satisfied that the failure to provide a further access period in respect of the Agreement constitutes a minor procedural or technical error for the purposes of s.188(2)(a) and that the employees to be covered by the Agreement were not likely to have been disadvantaged by the error. Accordingly, I am satisfied that the Agreement was genuinely agreed within the meaning of s.188(2) of the Act.
[16] In summary, subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[17] As noted, pursuant to s.190(3), I have accepted undertakings from S&C. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision.
[18] The ASU, 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.
[19] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 August 2019. The nominal expiry date of the Agreement is 13 August 2023.
Appearances:
M. Fowler with M. Robinson and M. Mustafa for the Applicant.
E. Callachor for the Australian Municipal, Administrative, Clerical and Services Union.
V. Moller, C. Purcell and A. Chard as employee bargaining representatives.
Telephone Hearing details:
2019.
Canberra and Melbourne:
March 28.
Printed by authority of the Commonwealth Government Printer
<AE504772 PR710708>
Annexure A
1 [2019] FWCFB 318
0
1
0