Thompsons, Kelly & Lewis Pty Ltd t/a Flowserve Pump Division
[2024] FWCA 2767
•29 JULY 2024
| [2024] FWCA 2767 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Thompsons, Kelly & Lewis Pty Ltd t/a Flowserve Pump Division
(AG2024/2445)
FLOWSERVE PUMP DIVISION (THOMPSONS, KELLY & LEWIS PTY LTD) CASTLEMAINE ENTERPRISE AGREEMENT 2023
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 29 JULY 2024 |
Application for approval of the Flowserve Pump Division (Thompsons, Kelly & Lewis Pty Ltd) Castlemaine Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Flowserve Pump Division (Thompsons, Kelly & Lewis Pty Ltd) Castlemaine Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Thompsons, Kelly & Lewis Pty Ltd t/a Flowserve Pump Division (the applicant). The Agreement is a single enterprise agreement.
The Commission raised a number of initial concerns with the applicant in relation to the application and the terms of the proposed agreement. The applicant addressed the concerns by written submissions and undertakings. One of the concerns raised related to the voting method used in the agreement approval process. In its supporting materials filed with the application, the applicant advised that the employees voted to approve the Agreement by a combination of a “show of hands” at a physical meeting and SMS message for those unable to attend the meeting.
Section 186(2) requires that the Commission must be satisfied of certain things in order for the application for the approval of an agreement to be approved. One of those requirements is that the Commission is satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement[1]. Section 188(1) provides:
(1) The FWC must take into account the statement of principles made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.
Clause 15 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Statement), which is the relevant legislative instrument made under s.188B, provides as follows:
Providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote
15. Employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner. This should include:
(a) a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer, and
(b) a method and period of voting that provides all employees entitled to vote with a fair and reasonable opportunity to cast a vote.
The applicant submitted that the Commission could be satisfied that the Agreement had been genuinely agreed to by the employees notwithstanding that the vote of employees may have been disclosed to or be ascertainable by the employer through the “show of hands” and SMS voting process.
The circumstances of the voting process were that the “show of hands” voting process was conducted, as agreed between the parties, by Mr. Traynor of the Australian Manufacturing Workers Union (AMWU). The AMWU was a bargaining representative in the bargaining process. It was also agreed that a “show of hands” process was appropriate having regard to the fact that voting on previous iterations of the Agreement, including its immediate predecessor, had been conducted in this way by the AMWU, and that two representatives of the applicant would be present to collect the voting statistics for the purposes of completing the Form F17B in support of the application. It was also agreed between the applicant and the AMWU that an SMS vote would be suitable for those who were unable to attend the meeting at which the “show of hands” vote was taken. This SMS vote was considered to be an appropriate method having regard to the nature of the workforce, including access to other voting methods for those employees working off-site.
Information about the voting process was provided to employees in advance of the vote. No concerns were raised by any employees with the applicant or the AMWU about the process.
Of the 23 persons who cast a valid vote, 22 voted by the “show of hands” process. Only one person voted by SMS. The Agreement was approved by a significant majority with 19 of those casting a valid vote, voting to approve the Agreement.
As clause 15 of the Statement of Principles makes clear, allowing employees to vote on a proposed agreement free from the possibility of any pressure or influence from the employer as to how votes are ultimately cast is an important component in ensuring that the will of the majority of the voting cohort is properly reflected in the outcome and that any approval is in fact genuinely given. In my view, any potential departure from the general principle reflected in clause 15(a) of the Statement should be approached cautiously and only be countenanced in very limited circumstances. The applicant submitted that consistent with paragraph 19 of the Statement, the views of the AMWU, acting as a bargaining representative for a significant proportion of the employees covered by the proposed agreement, should be given significant weight by the Commission in determining whether the Agreement has been genuinely agreed. Having regard to all the circumstances of this matter, including the fact that the AMWU supports the approval of the Agreement, that the AMWU does not have concerns that the agreement was not genuinely agreed to by the employees and that it conducted the “show of hands” ballot voting process that was adopted and by which the overwhelming majority of those voting ultimately voted, I am satisfied that the Agreement was genuinely agreed to by the employees.
The Notice of Employee Representational Rights (NERR) that was issued to employees was the form of notice provided for by the Act prior to the amendments introduced by the Fair Work and Other Legislation Amendment (Secure Jobs Better Pay) Regulations 2023 which came into effect on 6 June 2023. Having regard to the submissions of the applicant I am satisfied that this is a minor technical error, that employees were not likely to be disadvantaged by the error and that I should therefore exercise my discretion under s.188(5) and disregard the error.
The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. The bargaining representatives have indicated their acceptance of the undertakings provided. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.
I note that Clause 5.6 of the Agreement provides that this Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
The AMWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 September 2027.
DEPUTY PRESIDENT
Annexure A
[1] Section 186(2)(a).
Printed by authority of the Commonwealth Government Printer
<AE525591 PR777603>
2
0
0