UGL Resources (Contracting) Pty Ltd

[2014] FWC 9125

[2014] FWC 9125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UGL Resources (Contracting) Pty Ltd
(AG2014/9117)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 DECEMBER 2014

Application for approval of the OM Contracting Enterprise Agreement 2014.

[1] UGL Resources (Contracting) Pty Ltd made an application for approval of the OM Contracting Enterprise Agreement 2014 (the Agreement). The application was opposed by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[2] It is not disputed that on 10 September 2014 employees of UGL were to vote to approve the Agreement. Employees were sent an SMS message to which they could reply yes or no. Unbeknown to Mr Terence Elliot, the National IR Manager for UGL, seven employees had mobilised to the West Angelas site on 9 September 2014. 1 These employees were not sent the SMS message.

[3] As a consequence, the AMWU submitted that UGL had not complied with the preapproval requirements and the Agreement could not be approved.

[4] Further, the AMWU submitted that UGL had not complied with its good faith bargaining obligations as it had not involved the AMWU, which was the default bargaining representative in bargaining. It also submitted that the dispute resolution procedure did not comply with section 186(6) of the Fair Work Act 2009.

[5] There is no dispute that the employees who were not sent the SMS voting message were employees who were employed at the time the Agreement was made and would be covered by the Agreement.

[6] It is not disputed that the access period, which is the seven day period ending immediately before the start of the voting period, commenced on 2 September 2014.

[7] It is not disputed that there was no bargaining with the AMWU. It is not disputed that the employees were not provided with a copy of the National Employment Standards. 2

[8] On 2 September 2014, all mobilised employees were given a copy of the Agreement and an explanatory handout. 3 In addition to explaining the terms of the Agreement the handout explained that voting commenced at 9am EST on 10 September and closed at 5pm EST on the same day. Voting was to occur by SMS. The handout advised employees that the invitation to vote would come from a particular mobile phone number.

[9] Mr Elliott gave evidence that he gave instructions to Mr Simon Spratt and Mr Jens Schultz that the information was to be distributed to all employees at West Angelas on 2 September 2014. He instructed them to put the material in the crib rooms. As there was a further mobilisation of workers on 2, 3 and 4 September, Mr Elliott instructed that these employees be provided with copies of the Agreement and the explanatory material. The explanatory material advised that the relevant project manager on the site would be available in person or by email or telephone to discuss any particulars pertaining to the Agreement.

[10] Mr Mathew Johnston, the Commissioning Manager at the West Angelas Power Station Project, gave evidence that he handed to all employees on the site on 2 September 2014 a copy of the Agreement and the explanatory material. 4 He also placed copies of the Agreement and the explanatory material in the crib room. Mr Johnston gave evidence that the documents were still in the crib room the time he prepared his witness statement.5

[11] He was aware that later on 2 September 2014 some employees returned to the site or were mobilised to the site for the first time. It was his evidence that when those employees arrived at the site he met with them and explained what was happening with the Agreement and the vote and gave them copies of the Agreement and the explanatory material. It was his evidence that at the time there was only one active crib room. 6

[12] Mr Johnston left the site on 9 September 2014.

[13] Mr Spratt, the Project Manager, gave evidence that he returned to the site on 2 September 2014. He confirmed Mr Johnston’s evidence that there was a meeting of employees and that the Agreement and the explanatory material were distributed.

[14] Mr Spratt confirmed that copies of the Agreement and the explanatory material were placed in the crib room and that they were still there on 3 November 2014. 7 It was his evidence that all employees had access to the crib room. This was confirmed by Mr John Frost, the Mechanical Supervisor.8

[15] Mr Rikki Jacob, a Mechanical Supervisor, also returned to the site on 9 September 2014. It was his evidence that none of the employees attended the site on that day. On 10 September 2014, there was a pre-start meeting at the beginning of the day and all the new employees attended that meeting. There was no evidence of any discussion of the Agreement at the pre-start meeting. There was no evidence that the new employees were told at that meeting how they could organise a vote.

[16] Mr Dean Hensley was a member of the AMWU at the time of giving evidence but not at the time of the vote. He gave evidence that he commenced employment with UGL on 3 September 2014. Mr Hensley said that he was offered employment on 1 September and provided with an offer of employment. 9 He attended work in Perth to be inducted. The inductions which took place on 4, 5 and 8 September 2014 were conducted by a registered training organisation.10 When he was on the plane to West Angelas he was told by other employees about the upcoming ballot for the Agreement.11 When he arrived at the work site on 10 September 2014, he read through a copy of the Agreement that was in the crib room. It was his evidence that there was no other material with the Agreement.12 It was his evidence that after the pre-start meeting he asked an unnamed superintendent if he could participate in the vote and he was told that the vote was only open to employees who had been on site and who had read the Agreement.13 He said he had not seen the explanatory material before the vote14 and he was not informed by UGL about the time and place of the vote or how the vote would be conducted.15

[17] Mr Frost 16 and Mr Jacob17 both said that they attended the pre-start meeting and that they were the only management employees at that meeting and both denied telling Mr Hensley that he or anyone else could not vote for the Agreement.

[18] Mr Jacob said that there was no mechanical superintendent at the site at that time. 18 Mr Elliott confirmed this evidence and provided the attendance sheet for the meeting which showed that the supervisors present at the meeting were Mr Jacob and Mr Frost.

[19] Mr Elliott explained why Mr Hensley and the other employees were not provided with the Agreement and explanatory material at the induction. Mr Elliott said that employment at the site is subject to mobilisation. Mr Hensley’s employment contract provides that the offer of employment is subject to him successfully completing all verification of competency testing, skills training and inductions. 19 It was Mr Elliott’s evidence that not all persons who attend induction mobilise.20 Only those who are mobilised will be covered by the Agreement.

Findings

1. Were some employees excluded from the vote?

[20] Mr Hensley gave evidence that an unnamed supervisor told him that he could not vote. I am unable to accept this evidence. The person was not identified and the evidence could not be tested.

[21] Mr Elliott gave evidence that the material on how the vote would take place including the mobile number for the vote was available to the employees who arrived on 9 September 2014. 21 Mr Elliott in response to a question that the employees were not provided with a contact number of the people who are conducting the vote said “well it provides that mobile number.” Mr Elliott did not know what would happen if you rang the number. He assumed it would be answered and he noted a text message could be sent to the number.22

[22] I do not accept the submission of UGL that the employees were “given the ballot slip in being given and actually having the SMS number.”

[23] I am unable to find that the employees who arrived on site on 10 September 2014 were able to ring the number and vote. Mr Elliott’s evidence went no further than stating the obvious. The explanatory document told the employees what number they would receive the SMS vote from. Mr Elliott did not know what would happen if the number was called or if a text message was sent to the number.

[24] The returning officer had been given the phone numbers of those who were entitled to vote. Employees voted by responding to the text message. There was nothing in the material provided to the employees about what they should do if they did not get the text message. Employees who were unable to attend and cast a vote were told to contact their relevant manager and alternative arrangements would be made. That was not the situation of these employees.

[25] Further, there was no evidence on which I could find that if the employees had rung the number or sent a text message indicating their vote that the votes would have been accepted. The employees were denied the opportunity to vote because they were not sent the text message.

[26] In this case, I find that the Agreement was not made because UGL did not ask all the relevant employees to approve the Agreement. 23

[27] The importance of providing all employees who will be covered by an agreement with the opportunity to vote cannot be downplayed.

[28] In CFMEU v Hamberger and Others Katzmann J said as follows:

“The combined effect of ss.180-182 is that such employees- those current employees whose terms and conditions of employment will be affected by the proposed agreement - are provided with the opportunity to vote on it, and the agreement is made when a majority of them cast a valid vote in favour of it. ........Thus those employees who will be caught by its terms had the opportunity to vote for or against it.” 24

[29] The Full Bench in Cimeco Pty Ltd v CFMEU and ors 25doubted whether in circumstances where employees were not given the opportunity to vote an agreement “would be held to have been validly made.”26

[30] I accept that the exclusion of the employees was inadvertent. However their exclusion means that the agreement was not validly made and as such the exclusion cannot be cured by an undertaking.

2. Did UGL, during the access period, take all reasonable steps to ensure that the relevant employees are either given a copy of the agreement and any written material incorporated into the Agreement or they have access to a copy of those materials? 27

[31] I accept the evidence of the UGL witnesses that a copy of the Agreement and the explanatory material was placed in the crib room. I am satisfied that the relevant employees were either given a copy of the Agreement or had access to the Agreement.

[32] In my view the practice of not providing this material until employees arrive at the site may in certain circumstances mean that an employer does not comply with its obligations. That these employees may not in fact mobilise will mean that when the vote is taken they will not be eligible to vote. However they are entitled to be involved in the process whilst they are employed. However I make no such finding in this case as I am satisfied that when the employees arrived on site on 10 September 2014 they had access to the Agreement.

[33] The AMWU submitted that employees were not given a copy of the NES or they did not have access to the NES and as the NES in part was incorporated into the Agreement, UGL did not complied with its obligations.

[34] The Agreement provides at clause 3.3 that employees are entitled to unpaid parental leave in accordance with the NES. It provides at clauses 4.9.1 and 5.8.1 that employees will be entitled to payment for absence due to personal illness or injury in accordance with the NES clause subject to certain conditions. Clause 4.11 provides that if an employee is made redundant, the employee is entitled to redundancy pay in accordance with the NES.

[35] I do not accept the submissions of the AMWU that the NES are incorporated into the Agreement. However, even if the NES were incorporated into the Agreement, I am bound by the decision of the Full Bench in McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association 28 which held that while the long service leave legislation was incorporated into the agreement the employer was not required to provide a copy because the legislation is freely available in the public domain. I accept that the NES is freely available in public domain as it is clear that employees could access the internet from their mobile phones. While the Full Bench in National Tertiary Education Industry Union v University of New South Wales29 suggested that there might be circumstances “where the characteristics of the workplace and the composition of the workforce may require more”30 nothing was put in this case which would persuade me that this was such a case.

3. Did UGL, at the start of the access period, take all reasonable steps to notify employees of the time and place at which the vote will occur and the voting method used?

[36] There is no dispute that UGL advised employees of the time and place at which voting would take place and that it would be a secret ballot at the commencement of the access period.

[37] That information was included in the explanatory material and for the reasons set out above I have accepted that the document was in the crib room throughout the access period.

[38] Further there is no evidence that the employees who mobilised on 9 September 2014 were employed at the start of the access period.

4. Did UGL to take all reasonable steps to ensure that the terms of the Agreement and the effect of terms are explained to the employees?

[39] I accept the evidence that UGL, via the explanatory document, took reasonable steps to ensure that the terms of the Agreement and the effect of the terms were explained to employees. I accept that the method used by UGL to explain the Agreement was appropriate in the circumstances.

5. Did the dispute resolution procedure comply with section 186(6)?

[40] The AMWU submitted that because the dispute resolution procedure does not provide for the arbitration of disputes, there is no compliance with section 186(6). The Full Bench in Woolworths Ltd trading as Produce and Recycling Distribution Centre 31held that s186(6) did not require a dispute resolution procedure in an agreement to provide for arbitration. As such I am unable to conclude that the dispute resolution procedure does not comply with section 186(6).

6. Genuine Agreement

[41] The AMWU submitted that UGL should have contacted the AMWU as the default bargaining representative. It submitted that this failure meant that I could not be satisfied that the employees genuinely agreed to the Agreement. I do not accept this submission.

[42] It became clear at the hearing that at the relevant time Mr Hensley was not a member of the AMWU. Mr Tony Hall gave evidence that there were other AMWU members employed at the site. 32 Mr Elliott gave evidence that he did not know if employees were members of a union or not.33 I do not accept that the failure of UGL to contact the AMWU meant that they were not bargaining in good faith. There was no reason for Mr Elliott to believe that the AMWU was in fact a default bargaining representative. Mr Elliott gave evidence about the appointment of bargaining representatives. It was his evidence that, except at one site where employees chose to all be involved in the bargaining, all the other employees elected to appoint other employees as bargaining representatives.34 By the time Mr Hensley and the other employees arrived on site the bargaining process was complete as the Agreement was to be put to the vote.

Conclusion

[43] As I have found that UGL did not comply with section 181(1), the agreement has not been made 35and cannot be approved. The application for approval is therefore dismissed.

[44] Were it not for the finding that the Agreement was not validly made I would have approved the agreement with the undertakings provided by UGL.

DEPUTY PRESIDENT

Appearances:

C Gianatti for UGL Resources (Contracting) Pty Ltd.

T Kucera for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

Hearing details:

2014.

Melbourne and Perth (video hearing):

November 19.

Perth:

November 26.

<Price code C, PR559117>

 1   Exhibit A2 at [6]

 2   Transcript PN 530

 3   Exhibit R1 at DJH 2

 4   Exhibit A5 at [4]

 5   Ibid at [5]

 6   Transcript PN 662

 7   Exhibit A1 at [6]

 8   Exhibit A6 at [5]

 9   Exhibit R1 at DJH1

 10   Ibid at [8]

 11   Ibid at [12]

 12   Ibid at [13]

 13   Ibid at [15]

 14   Ibid at [19]

 15   Ibid at [20]

 16   Exhibit A6 at [5]-[6]

 17   Exhibit A4 at [5]-[6]

 18   Ibid at [7]

 19   Exhibit R1 at DJH1

 20   Transcript PN 326-329

 21   Ibid PN 411

 22   Ibid PN 452

 23   s.182(1) and s.181(1)

 24 282 ALR 1 at [83]

 25   [2012] FWAFB 2206

 26   Ibid at [53]

 27   s.180(2)

 28   [2010] FWAFB 4602

 29   [2011] FWAFB 5163

 30   Ibid at [24]

 31   [2010] FWAFB 1464

 32   Transcript PN 707

 33   Ibid PN 320-321

 34   Ibid PN 373, 377

 35   S.182(1)

Printed by authority of the Commonwealth Government Printer