UGL Kaefer

[2015] FWCA 7662

[2015] FWCA 7662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UGL Kaefer
(AG2015/5858)

UGL KAEFER, AMWU ONSHORE MECHANICAL MAINTENANCE SERVICES ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 9 NOVEMBER 2015

Application for approval of the UGL KAEFER, AMWU Onshore Mechanical Maintenance Services Enterprise Agreement 2015.

[1] An application has been made for approval of an Enterprise Agreement known as the UGL KAEFER, AMWU Onshore Mechanical Maintenance Services Enterprise Agreement 2015 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). Section 185 is in Part 2–4 of the Act which provides for the making of Enterprise Agreements between an employer and their employees who are employed at the time the agreement is made and who will be covered by the agreement. The application has been made UGL Kaefer (the Applicant). The Agreement is a single-enterprise Agreement.

[2] FWC assessed the Agreement on the basis of the material provided by the Applicant. The Agreement does not contain a consultation term in respect to changes to rosters and hours of work which meets the requirements of Section 205 of the Act. The model term will therefore be a term of the Agreement. Otherwise it appeared to FWC that the requirements of the legislation have been met.

[3] The AMWU was a bargaining representative for the Agreement and they objected to the approval of the Agreement on two grounds. Firstly they noted that the Agreement is signed on behalf of the company by JCL Elliott. The AMWU submit that this is not the full name of the signatory contrary to the relevant regulations. This defect is not fatal to the approval of the Agreement as FWC can, at its discretion, allow the employer to correct this error and to the extent necessary grant additional time for submitting the paperwork accompanying the application. I allowed the employer the opportunity to provide a corrected signature page and grant the necessary additional time.

[4] Secondly the AMWU submit that Section 186(2)(a) has not been met because the vote was not a sound reflection of the wishes of the voting population. 30 employees are covered by the Agreement and were eligible to vote, 23 voted and of those 14 supported the Agreement. The AMWU argues that employees perceived that their vote may not be confidential to the employer and that the employer might not grant them further work if they voted no. The employer had in a notice attaching the Agreement “strongly recommended” a yes vote. The ballot was conducted by an industrial relations firm IRIQ using an SMS text messaging system.

[5] Evidence was given by Mr Dodd, AMWU organiser, of concerns which had been expressed to him by members covered by the proposed Agreement. I am satisfied that most employees covered by the Agreement are AMWU members and I am satisfied that Mr Dodd is in a good position to represent their views.

[6] I am not satisfied that the legislation prevents employers or unions from strongly advocating a vote one way or another in respect to a proposed Agreement. In that situation it will be common for employees to consider the possible reaction of their employer when deciding how to vote. Of course there will be situations where an employer places unreasonable pressure on employees such that it calls into question whether or not there has been genuine Agreement. If an employer implied to employees that they would not be selected for further work if they voted against the Agreement that would be an example of unreasonable pressure. However, there is no suggestion that the employer took any such action. If employees had an apprehension concerning the employer’s response there is no evidence it was based on any actions of the employer.

[7] I am not satisfied that the legislation requires a secret ballot. To avoid concerns about whether or not there has been unreasonable pressure and that the vote is a genuine expression of views it will often be sensible to provide for confidentiality in circumstances where the employer or their agent conducts the ballot. I am satisfied that IRIQ is a company which generally represents employers and would properly be seen as associated with the employer. I accept that some employees may have had some reasonable apprehensions that the employer could have found out how they voted given the voting method and who conducted the ballot. However, that is not sufficient to raise serious doubts about whether or not there was genuine agreement. In reaching this conclusion I take into account that more than 60% of those who voted, voted yes and that the level of participation in the ballot was not low. I also take account of the evidence of Ms Moltoni from IRIQ as to the integrity and confidentiality of their processes and that fact that the employees in this case participated in a vote using this method earlier in 2015 and during the vote overwhelmingly rejected the proposed agreement.

[8] I am satisfied that employees should have an opportunity to vote. The AMWU say that because the ballot took place between Friday 2 October 2015 and 2pm Monday 5 October 2015 employees did not have adequate opportunity to vote. The 2 October 2015 was a public holiday. This is a reasonable basis for this concern. However, there is no evidence that any employee was denied an opportunity to vote. In those circumstances, taking into account the level of participation, I am not satisfied that employees were denied the opportunity to vote.

[9] I am satisfied that the requirements of Section 188 and 186(2)(a) have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[10] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

[11] The Agreement was approved on 9 November 2015 and, in accordance with s.54, will operate from 16 November 2015. The nominal expiry date of the Agreement is 14 October 2017.

COMMISSIONER

Appearances:

Ms T Moltoni appeared for the Applicant.

Mr Terzic appeared for the AMWU

Hearing details:

2015

Melbourne

November 6

Printed by authority of the Commonwealth Government Printer

<Price code G, AE416531  PR573706>