TAB Agents Association (SA Branch) Inc.

[2013] FWC 4

[2013] FWC 4

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

TAB Agents Association (SA Branch) Inc.
(AG2012/12016)

DEPUTY PRESIDENT BARTEL ADELAIDE, 2 JANUARY 2013

Tab Agents Association (SA Branch) Inc. Enterprise Agreement 2012-2017.

[1] An application for approval of an enterprise agreement known as the TAB Agents Association (SA Branch) Enterprise Agreement 2012 - 2017 (the Agreement) has been made by the TAB Agents Association (SA Branch) Inc. (the applicant or the Association).The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is an application for a multi-enterprise agreement. The Agreement purports to cover TAB agents who are members of the Association and who are the employers of the employees who will be covered by the Agreement.

[2] The application was filed on 30 October 2012. On 2 November 2012 I issued a Statement of Preliminary Findings, which identified a number of procedural and substantive issues with the Agreement. A hearing was held on 21 November 2012 at which time Ms Nachiappan of Andersons Solicitors appeared for the applicant. Arising from matters discussed at the hearing, the applicant provided further documentary material on 11 December 2012.

The purported bargaining representative of the employers

[3] The application for approval (Form F16) identifies Andersons Solicitors as the bargaining representative of the employer. This is not the case. Andersons Solicitors was engaged by the Association to advise it in relation to the Agreement. 1 At the hearing and in correspondence received from Ms Nachiappan2, the Tribunal was advised that the Association and/or the Chairperson of the Association acted as the bargaining representative for member TAB Agents.

[4] According to Ms Nachiappan, the employers voted that the Association would be their bargaining representative for the Agreement at an Annual General Meeting held in December 2011. 3 The minutes of that meeting have not been provided. What has been provided is a copy of a pro forma letter dated 7 December 2012 addressed to the Chair of the Association that, according to Ms Nachiappan, was circulated to the members of the Association for signing. The letter includes the following passages:

“I refer to the TAB Agents Association (SA Branch) Inc. meeting held on 18 October 2011. As per my vote on the day, I confirm as follows:

1. I appoint you, SUE WILLIAMS as Chair of the TAB Agents Association (SA Branch) Inc., as my bargaining representative for the negotiation of an Enterprise Bargaining Agreement in 2012. This is consistent with Fair Work Act 2009, s176(1)(d).

2. I authorise yourself and the TAB Agents Association (SA Branch) Inc. to instruct Andersons Solicitors with regard to preparation of the Enterprise Bargaining Agreement and assistance in the balloting and approval of same.

3. I am the owner/proprietor of the TAB Agency as per this letterhead. This Agency is currently a member of TAB Agents Association (SA Branch) Inc. I am the employer and party to this Agreement (as per clause 2 of Agreement). I consent to be continuously bound by this agreement, regardless of the agency status as an ongoing member of the TAB Agents Association (SA Branch) Inc. or otherwise.”

[5] As an aside I note that the minutes of the meeting on 18 October 2011 contain no reference to the appointment of the Association or the Chairperson or any other person as a bargaining representative in relation to the Agreement.

[6] The above letter was drafted by Ms Nachiappan after the hearing. Paragraph 1 of the pro forma letter is somewhat surprising given the following exchange which occurred at the hearing:

“MS NACHIAPPAN: ... The way I see it, she is the bargaining rep. She is the Chairperson of the TAB Association.

THE DEPUTY PRESIDENT: Is she appointed in writing as the bargaining rep?

MS NACHIAPPAN: That’s the correspondence I’m due to forward to the tribunal, as being appointed by each and every member outlet to bargain on their behalf for this enterprise bargaining agreement.

THE DEPUTY PRESIDENT: Okay.

...

MS NACHIAPPAN: ... Would that make the process smoother if Andersons Solicitors and myself is identified as the bargaining rep?

THE DEPUTY PRESIDENT: No. What would make the process smoother is the person who is the bargaining rep for the negotiation of the agreement actually identifies themselves. This isn’t something you do in retrospect.

MS NACHIAPPAN: I understand.

THE DEPUTY PRESIDENT: Be clear on that.

MS NACHIAPPAN: I understand, your Honour.

THE DEPUTY PRESIDENT: That’s why there’s an appointment in writing at the time.” 4

[7] Section 176(1) of the Act identifies the persons who are bargaining representatives for agreements that are not greenfields agreements, and states that:

“Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

...

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.”

[8] This section makes it clear that a person is a bargaining representative of the employer if the person is appointed in writing by the employer to bargain on their behalf in relation to a proposed enterprise agreement. There is no room for retrospective appointment, and a collective vote of certain TAB Agents at a meeting that predated the Agreement, assuming this occurred, does not satisfy the requirement of a written appointment of a bargaining representative by each employer.

The negotiation of the Agreement

[9] Section 172(3) of the Act deals with multi-enterprise agreements and relevantly provides that two or more employers that are not single interest employers may make an enterprise agreement (a multi-enterprise agreement) with the employees who are employed at the time the agreement is made and who will be covered by the agreement. The Agreement was not negotiated by the employers or a bargaining representative appointed in accordance with the statutory requirements.

The parties bound by the Agreement

[10] Only Ms Williams has filed a Form F17 in support of the application for approval, and while she has identified herself as an “Agency Manager” it is clear that she is completing the form in her capacity as Chairperson of the Association. For example, where the form requests the legal name of the employer, Ms Williams refers to Annexure A filed with the F17 which lists 43 TAB Agencies.

[11] The Parties Bound clause stipulates that the Agreement is binding on the Association, its members and employees of its members. No members of the Association are named in the Agreement. Under the wording of this clause, an employer could cease to be a member of the Association and in so doing would remove itself and its employees from the scope of the Agreement. This is inconsistent with the scheme of the Act, which provides that multi-enterprise agreements may be made between two or more employers and the employees employed at the time the agreement is made and who will be covered by the agreement. 5 The problems with the scope of the Agreement as currently expressed cannot be rectified retrospectively by amending the Agreement or by the provision of undertakings as suggested by Ms Nachiappan.

The ballot process

[12] Section 184 of the Act provides:

“184 Multi-enterprise agreement to be varied if not all employees approve the agreement

Application of this section

(1) This section applies if:

(a) a multi-enterprise agreement is made; and

(b) the agreement was not approved by the employees of all of the employers that made a request under subsection 181(1) in relation to the agreement.

Variation of agreement

(2) Before a bargaining representative applies under section 185 for approval of the agreement, the bargaining representative must vary the agreement so that the agreement is expressed to cover only the following:

(a) each employer whose employees approved the agreement;

(b) the employees of each of those employers.

(3) The bargaining representative who varies the agreement as referred to in subsection (2) must give written notice of the variation to all the other bargaining representatives for the agreement.

(4) The notice must specify the employers and employees that the agreement as varied covers.

(5) Subsection (3) does not require the bargaining representative to give a notice to a person if the bargaining representative does not know, or could not reasonably be expected to know, that the person is a bargaining representative for the agreement.”

[13] The ballot of employees appears to have been conducted on a collective basis, that is, the employees of all employers who are members of the Association participated in the same ballot. The ballot paper did not identify the employer of the employee casting the vote.

[14] On the information before the Tribunal there are 44 members of the Association and 44 employees who “will be covered by the Agreement”. 6However, only 13 employees cast a valid vote,7 which would indicate that the Agreement was not approved by a valid majority of the employees employed by 31 (unidentified) employers.In these circumstances the provisions of s.184 of the Act have not, and could not have been complied with.

Conclusion

[15] There are a range of other concerns with the Agreement which it is unnecessary to detail here, other than to note that in the main they are concerns which would be able to be addressed by undertakings pursuant to s.190 of the Act. However, due to defects in the process of negotiation of the Agreement, in the ballot process and in the scope and parties bound by the Agreement, the application for approval of the Agreement is rejected.

DEPUTY PRESIDENT

Appearances:

S Nachiappan for the applicant

Hearing details:

2012

Adelaide

November 21

 1   Minutes of the Unitab Agents Association (SA Branch) Inc. 7 February 2011 and 18 October 2011. This association subsequently registered a change of name and became the TAB Agents Association (SA Branch) Inc.

 2   Dated 20 November 2012.

 3   Correspondence from Ms Nachiappan to the Tribunal dated 20 November 2012.

 4   PN 151-164.

 5   Section 172(3)(a) of the Act.

 6   Form F17, Q2.9.

 7   Contrary to the submissions of Ms Nachiappan at PN 38-41.

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