Viridian Glass Pty Ltd

[2020] FWCA 138

[2020] FWCA 138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Viridian Glass Pty Ltd
(AG2019/4806)

VIRIDIAN GLASS LIMITED - WOODVILLE ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 10 JANUARY 2020

Application for approval of the Viridian Glass Limited - Woodville Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Viridian Glass Limited - Woodville Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Viridian Glass Pty Ltd (the Applicant or Viridian). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 17 December 2019.

[3] On 23 December 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) raised a number of objections at the Conference including the issue of genuine agreement. I subsequently required the CFMMEU to provide an outline of its objections and any witness statements by 6 January 2020, with the Applicant providing any response, witness statements and undertaking that it sought to rely on by 8 January 2020.

[4] On 6 January 2020, the CFMMEU filed an outline of objections and a witness statement of Mr David Kirner. On 8 January 2020, the Applicant filed an outline of submissions, witness statements from Ms Christine Vickers and Mr Matthew Vickers and an undertaking. Both parties confirmed that the witnesses were not required for cross-examination.

[5] The undertaking dealt with the following topics:

•  Clause 8 is replaced with model consultation term.

•  Clause 18.1 is amended to the following: An employee engaged for more than two hours during one day on duties carrying a higher minimum wage than the employee’s ordinary classification must be paid the higher minimum wage for such day. If for two hours or less during one day, the employee must be paid the higher minimum wage for the time so worked.

•  Employees will not be paid overtime rates in instances where employees mutually agree between themselves to swap ordinary time shifts that are of equal shift length and within the same pay period. In such instances, employees will be paid the ordinary rate of pay associated with the time worked.

•  An employee will be paid overtime for attending a meeting or training, with the permission of the employer, outside their ordinary hours.

•  Schedule C (Supported Wage System) has no effect and is replaced by Schedule E of the Joinery and Building Trades Award 2010.

[6] On 10 January 2020, a Hearing by telephone was conducted. Mr Mark Douglas appeared on behalf of the Applicant, Mr Paris Nicholls appeared on behalf of the CFMMEU and Mr Paul Law appeared as an employee bargaining representative.

[7] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 11 December 2019.

Genuine Agreement / Provision of Notice of Employee Representational Rights (NERR)

[8] The Hearing focussed on the late provision of the NERR and its impact on genuine agreement, all other issues being addressed in the undertaking and further information provided by the Applicant.

[9] There was no dispute that the NERR was not distributed to the employees within the time frame required by s.173(3) of the Act.

[10] Viridian contend that the notification time was 14 May 2019 and that the NERR was required to be distributed by 28 May but was distributed on 31 May 2019. Viridian contend that the error was a minor procedural or technical error and that employees were not likely to have been disadvantaged.

[11] The CFMMEU contended that the notification time occurred not later than 13 February 2019 and that the length of the delay prevents its characterisation as minor and that employees are likely to have been disadvantaged as there were two formal bargaining meetings which took place prior to the distribution of the NERR on 15 April 2019 and 14 May 2019.

[12] Mr Kirner provides the basis for his view of the time when bargaining commenced at paragraph 5 of his statement contending that his discussions and email correspondence with Viridian on 12 and 13 February 2019. He also relies on a submission made by Mr Douglas on behalf of Viridian during a related bargaining dispute before Deputy President Anderson where it ‘generally agreed on the rough timeline of when negotiations commenced’.

[13] Ms Vickers evidence is that Viridian was aware Mr Kirner sought to negotiate a replacement Agreement in January 2019. On 12 February 2019, Mr Kirner advised her that the Union sought to negotiate a National agreement. Ms Vickers advised she was not the person to speak with about a National agreement. Ms Vickers sought instructions and was advised that Crescent Capital Partners (the new owners of Viridian) would not authorise the negotiation of any agreement. On 21 February 2019, Ms Vickers advised Mr Kirner of this position when he visited Viridian. Ms Vickers advised Mr Kirner that Viridian could not bargain as the new owners needed time to analyse the business. On 1 April 2019, Mr Kirner requested that NERR’s be issued. On 3 April 2019, Mr Kirner followed up the previous request with an email. Ms Vickers response indicated that Viridian were taking a State by State approach to agreement making. On 15 April 2019, Mr Kirner advised Ms Vickers that the CFMMEU members had passed a resolution to negotiate a joint Victorian and South Australian agreement. Ms Vickers sought confirmation from Mr Douglas (Industrial Relations Manager) that Viridian had not commenced to negotiate the new agreement. On 30 April 2019, Mr Kirner sought to hold a meeting to provide a report back on the national negotiations with Viridian. On 7 May 2019, Mr Douglas advised Ms Vickers that Crescent Capital Partners had authorised bargaining for a Woodville Site agreement. Mr Kirner was advised of this decision on 14 May 2019. Ms Vickers advises that the first formal bargaining meeting occurred on 21 June 2019.

[14] The information provided at the Hearing from Mr Kirner and Mr Law (an employee bargaining representative) indicates that at all times approximately half of the employees were represented by the CFMMEU and the other half were represented by Mr Law albeit there was some movement between the two groups.

Consideration

[15] Whilst I accept that Viridian’s previous submissions in respect of the bargaining dispute appears to be at odds with the detailed evidence provided by Ms Vickers, I have some reservations about preferring a general submission for a different matter over a witness statement on the specific point.

[16] It appears from the information provided that in February 2019 the CFMMEU sought to negotiate a national agreement and that Viridian did not agree. This is to be contrasted with a position where both parties agreed to negotiate an agreement but there was a dispute as to scope.

[17] Whilst I accept there was some preparatory work being done (as per the email exchange on 12/13 February 2019) in my views Viridian had not agreed to bargain for a National agreement.

[18] It appears the CFMMEU and Viridian were at cross purposes. If there was any doubt about that, it was resolved by Ms Vickers communication on 21 February 2019.

[19] There is clear evidence about the agreement to bargain about a South Australian agreement being made on 7 May 2019 and communicated to the CFMMEU on 14 May 2019. It was after this point that formal bargaining commenced. I am not satisfied that Viridian had agreed to bargain prior to this date, and find that the notification time was 14 May 2019.

[20] On that basis, the NERR was distributed 3 days late. In my view this is a minor procedural or technical error.

[21] I turn now to the impact of the error. The CFMMEU correctly identified the concern that a failure to issue the NERR in a timely manner can give rise to disadvantage by preventing an employee’s opportunity to participate in the process. I note that the scheme of the Act appears to permit bargaining meetings to occur in the first 14 days post notification time, despite the fact the NERR may not have been issued.

[22] The information before me is that all of the employees were represented by either Mr Law or the CFMMEU at all times (including the discussion that occurred pre-14 May 2019). On this basis, I am satisfied that the minor error would not have been likely to disadvantage the employees.

[23] I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[24] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[25] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act.

[26] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[27] The Construction, Forestry, Maritime, Mining and Energy Union, 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) of the Act I note that the Agreement covers this organisation.

[28] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[29] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE506726  PR715837