Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services

[2015] FWCA 4606

[2015] FWCA 4606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
(AG2015/906)

VEOLIA ENVIRONMENTAL SERVICES WA, BP REFINERY AGREEMENT 2015-2015

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 JULY 2015

Application for approval of the Veolia Environmental Services WA, BP Refinery Enterprise Agreement 2015 - 2015.

[1] Veolia Environmental Services (Australia) Pty Ltd (Applicant) has applied under section 185 of the Fair Work Act 2009 (Act) to the Fair Work Commission (Commission) for the approval of the Veolia Environmental Services WA, BP Refinery Agreement 2015-2015 (Agreement).

[2] The Agreement was made on 8 April 2015 and provides that the Agreement’s nominal expiry date is 23 May 2015. Separately, the Applicant applied to vary the Veolia Environmental Services WA, BP Refinery Agreement 2012-2015 (Current Agreement). The Current Agreement will cease to apply if the Agreement is approved and when the Agreement commences operation. The application to approve the Agreement was made on 21 April 2015 but its approval was delayed at the request of the Applicant until the determination of the application to vary the Current Agreement. Subsequently, on 29 May 2015 the Applicant advised that it wished to withdraw its application to vary the Current Agreement and to proceed with its application to the approval of the Agreement.

[3] The Australian Workers’ Union (AWU), a bargaining representative for the Agreement, gave notice on 2 June 2015, that it wished to be heard in relation to the application for approval of the Agreement. On 4 June 2015 I made directions for the filing and service of submissions and evidentiary materials and the parties have since complied with the directions. Although the AWU filed a witness statement of Mr Damien Keatley, it has subsequently advised my chambers that Mr Keatley no longer wished to be involved in the proceeding. The witness statement is not signed and Mr Keatley has not been cross-examined. In the circumstances I disregard the witness statement in determining whether the Agreement should be approved.

[4] The parties have since agreed that I should determine the application on the papers without a hearing.

[5] The central objection raised by the AWU is that there are reasonable grounds for believing that the employees who are covered by the Agreement have not genuinely agreed to it. It is said that the reasonable grounds arise because the relevant employees may have been misled about what it is that they were be asked to approve. It is said that at information sessions conducted by the Applicant between 26 March 2015 and 1 April 2015, employees were told that they were not being asked to approve the Agreement but rather, that which was being sought was an extension to the Current Agreement. The AWU submits that only one vote of employees was conducted by the Applicant yet two applications, one seeking the approval of a variation of the Current Agreement and one seeking approval of the Agreement, were made by the Applicant.

[6] The employer’s statutory declaration filed in support of the application for the approval of the Agreement sets out that:

• employees who will be covered by the Agreement were physically handed a copy of the Agreement on 25 March 2015 and that any employee who was not handed a copy was sent a copy of the Agreement by email on 26 of March 2015;



• copies of the Agreement were also available at the site office for the period between 26 March 2015 and 8 April 2015;



• information sessions explaining the Agreement and its effect were held on 26, 27 and 31 March 2015 and 1 April 2015;



• on 1 April 2015 a letter was handed to employees and also sent by email explaining when the vote will take place, how the vote will be conducted, the method of voting to be used and a place in which the vote would occur;



• voting for the Agreement commenced on 7 April 2015; and



• the Agreement was made on 8 April 2015.

[7] The AWU did not seek to cross-examine on the employer’s statutory declaration.

[8] The Applicant also filed witness statements of Mr Michael McGerr, a Senior Human Resources Adviser of the Applicant, Mr John Crouch, the Manager of Industrial Relations and Human Resources WA of the Applicant, Mr Lee MacIntyre, the Manager – Southern Industrial Operations of the Applicant and Mr Guy Hura, the Site Operations Manager of BP Kwinana Refinery of the Applicant. Without recounting that which is contained in those statements, collectively they confirm (and provide greater detail) about the matters that are set out in the employer’s statutory declaration.

[9] The AWU did not seek to cross-examine any of these witnesses. The material contained in employer’s statutory declaration and in the witness statements is directly contrary to the assertions made by the AWU in its written submissions. The AWU did not provide any evidential material in support of the assertions that it made. In the circumstances I prefer the material contained in the employer’s statutory declaration and in the witness statements the Applicant has filed.

[10] An issue that has troubled me however is that if I approve the Agreement, the nominal expiry date of the Agreement will have passed before the Agreement comes into operation. If the Agreement had been approved shortly after the application for approval had been filed (and I can indicate that as at 24 April 2015 I was in a position to do so), the issue would not have arisen. However for the reasons given earlier, a decision to approve the Agreement was delayed with the consequence that approval of the Agreement now will have the result that I have indicated.

[11] Section 186(5) of the Act provides the following:

Requirement for a nominal expiry date etc.

(5) The FWC must be satisfied that:


(a) the agreement specifies a date as its nominal expiry date; and


(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

[12] It seems to me there are two possible constructions of this provision. The first is that an agreement must have a date as its nominal expiry date, being any date, provided that date is no more than four years after the day on which the Commission approves the agreement. This will allow a nominal expiry date to be a date before the Commission approves the agreement or before the agreement commences to operate.

[13] The second construction is that there are two elements to the nominal expiry date requirement. First, the date must be after the date on which the Commission approves the agreement. Secondly, that date cannot be more than four years after the date of approval. On this construction an agreement may have a nominal expiry date that is before the date on which the agreement commences to operate so long as it is after the agreement is approved. This is because an agreement does not commence to operate any earlier than 7 days after it is approved.

[14] The first construction appears to be consistent with ordinary grammatical meaning of the language in section 186 (5) of the Act, although it is odd that it would be permissible for an agreement to nominally expire, in effect, before the Commission has approved it and before it has commenced to operate. The second construction requires reading the word “after” in paragraph 186 (5)(b) as affecting both the outer limit of the nominal expiry date and the period within which that date may be set, namely between the date of approval and four years later. Moreover, the second construction raises the prospect that where parties agree that an agreement will have a short nominal life (as is the case here) that a delay in approval will result in that date having passed before approval is given.

[15] Ultimately, I have concluded that it is appropriate to apply the ordinary grammatical meaning with the result that the Agreement may specify a nominal expiry date, which is a date before the Agreement is approved and before it commences to operate. There does not seem to be anything in the provisions of Part 2-4 of the Act, in the objects of that Part or in the object of the Act, which would suggest a departure from the ordinary grammatical meaning. The Agreement once approved will continue to operate until it is replaced by another agreement or terminated in accordance with the provisions of Part 2-4.

[16] Therefore on the basis of the material contained in the application, the accompanying employer’s statutory declaration and the witness statements referred to above, I am satisfied that each of the requirements in sections 186, 187 and 188 as are relevant to this application for approval have been met.

[17] The Agreement was approved on 9 July 2015 and pursuant to section 54 of the Act, the Agreement will operate from 16 July 2015. The normal expiry date of the Agreement is 23 May 2015.

DEPUTY PRESIDENT

Written Submissions:

The Australian Workers’ Union 12 June 2015

Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services 19 June 2015

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