The Australian Manufacturing Workers' Union (AMWU) v Saunders International Ltd
[2013] FWCFB 6557
•10 SEPTEMBER 2013
[2013] FWCFB 6557 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Saunders International Ltd
(C2013/5766)
VICE PRESIDENT HATCHER | SYDNEY, 10 SEPTEMBER 2013 |
Appeal against decision [[2013] FWCA 5843] of Commissioner Macdonald at Sydney on 20 August 2013 in matter number AG2013/7936 - appeal granted - agreement not genuinely agreed to - decision quashed - application for approval of agreement dismissed.
Introduction
[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for the approval of an enterprise agreement known as the Saunders International Ballan Rd. Reservoir On-Site Construction Employee Collective Agreement 2013 - 2014 (the Agreement) was made to the Fair Work Commission on 31 July 2013 (the Application).
[2] A decision of Commissioner Macdonald approving the Agreement was made on 20 August 2013 (the Decision) 1.
[3] The Australian Manufacturing Workers’ Union (the Appellant) has appealed the Decision under s.604 of the Act. The Appellant’s Notice of Appeal sets out the following grounds of appeal:
“1. The Agreement was not an enterprise agreement and as such the Commissioner Macdonald fell into error when he purported to approve the Agreement under the Fair Work Act 2009 (“FW Act”), s185.
...
2. The approach of Saunders, in making an ex-parte application to approve the Agreement, without disclosing matters that would have been material to the Commission’s deliberations was a breach of the duty advocates have to disclose, fully and frankly, all matters relevant to an application before the Commission.
3. Additional and in the alternative to the above, contrary to the FW Act, s 181(2), Saunders did not allow “at least 21 days” to elapse from the day of the giving of the last notice of employee representational rights to the day on which the employees were requested to approve the Agreement (see Appeal book, p 14 at para 2.8; the respective dates were 12 July 2013 and 2 August 2013).
4. The appellant is a “person who is aggrieved” by the decision of Commissioner Macdonald to approve the Agreement.”
[4] The Appellant made an application for a stay of the Decision pending the determination of this appeal. A stay order was granted by Vice President Hatcher on 30 August 2013. 2 At the hearing of the stay application, the Commission was advised by the Australian Industry Group (AIG), which represented Saunders International Ltd (the Respondent), that the Respondent conceded to Ground 3 of the Appellant’s appeal and on that basis the Agreement should not have been approved by the Commissioner and was incapable of approval under the Act. The Appellant and the Respondent also submitted that they consented to the appeal being determined without a hearing and “on the papers” as provided for in s.607(1) of the Act.
[5] The bargaining representatives of employees to be covered by the Agreement did not appear at the stay hearing on 30 August 2013. Vice President Hatcher, during the course of that hearing, invited the Respondent to seek the views of the bargaining representatives as to whether the appeal could be determined without a hearing and “on the papers”. On 4 September 2013, AIG sent correspondence to the Vice President advising that the bargaining representatives had indicated to the Respondent in writing that “they have no objections to the company’s decision not to oppose the appeal and that the review could be conducted without a hearing”.
[6] Section 607(1) of the Act provides:
“An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearing only if:
(a) it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and
(b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.”
[7] Given the discrete nature of the issue raised by the appeal and the concession by the Respondent, we consider that the appeal can adequately be determined without persons making oral submissions. We further find that persons who would otherwise or who will make submissions in the appeal have consented to the appeal being conducted without a hearing. Accordingly we will proceed to determine the appeal on the material currently before us and without holding a hearing. 3
Consideration
[8] Part 2-4, Division 4 of the Act sets out the provisions concerning the approval of enterprise agreements. Section 181 sets out the requirements in relation to an employer’s request to employees to approve a proposed enterprise agreement as follows:
“181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”
[9] Section 182(1) defines when an enterprise agreement is made:
“182 When an enterprise agreement is made
Single enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
[10] Sections 186, 187 and 188 of the Act set out the requirements that must be satisfied before the Commission is able to approve an enterprise agreement. The requirement that an enterprise agreement is genuinely agreed to is set out in ss.186(1) and (2) and 188 as follows:
“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 section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
....
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.”
[11] According to the Form F17 “Employer’s Declaration in Support of Application for Approval of Enterprise Agreement” dated 6 August 2013, the date on which the last notice under s.173(1) was given to an employee to be covered by the Agreement was 12 July 2013, and the date on which voting for the Agreement commenced was 2 August 2013. There was no issue that this was a factually correct statement. That being the case, we are satisfied that Ground 3 of the notice of appeal is made out (as the Respondent conceded). The employer’s request to employees for approval of the Agreement was not made at least 21 days after the day on which the last notice of representational rights was given. 4 It follows that the Agreement was not properly “made” in accordance with s.182 of the Act, nor was it genuinely agreed to as defined in s.188. In those circumstances, the Commissioner had no jurisdiction to approve the Agreement, and erred in doing so.
[12] It is not necessary to address the other appeal grounds advanced by the Appellant. We will grant permission to appeal, uphold the appeal and quash the Decision.
[13] It is necessary for us to determine the Application. For the reasons we have stated, the Agreement was not “made” in accordance with s.182(1) of the Act, nor was it genuinely agreed to by the employees to be covered by the Agreement. It cannot therefore be approved under the Act. We dismiss the Application.
Orders
[14] We order as follows:
1. Permission to appeal is granted.
2. The appeal is upheld.
3. The Decision of Commissioner Macdonald ([2013] FWCA 5843) is quashed.
4. The application for the approval of the Saunders International Ballan Rd. Reservoir On-Site Construction Employee Collective Agreement 2013 - 2014 in the matter AG2013/7936 is dismissed.
VICE PRESIDENT
1 [2013] FWCA 5843
2 See Order PR541046.
3 See Re Modern Industries Australia Pty Ltd [2010] FWA 2476 at [2]-[3].
4 See s.36(1) item 6 of the Acts Interpretation Act 1901 (Cth).
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