Wangaratta Rural City Council

[2018] FWCA 4087

[2018] FWCA 4087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wangaratta Rural City Council
(AG2018/2083)

WANGARATTA RURAL CITY COUNCIL ENTERPRISE AGREEMENT 2017-2021

Local government administration
COMMISSIONER LEE	MELBOURNE, 25 JULY 2018

Application for approval of the Wangaratta Rural City Council Enterprise Agreement 2017 - 2021.

[1] Wangaratta Rural City Council (the Applicant) has made an application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Wangaratta Rural City Council Enterprise Agreement 2017-2021 (the Agreement). The application was lodged with the Fair Work Commission (the Commission) on 17 May 2018.

[2] The Australian Nursing and Midwifery Federation (ANMF), Australian Municipal, Administrative, Clerical and Services Union (ASU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), being union bargaining representatives for the Agreement filed Form F18’s in support of approval. Ms Leonie Painter and Mr John Bell, being employee bargaining representatives for the Agreement filed Form F18A’s in support of approval.

[3] On 29 May 2018 the Commission wrote to the Applicant outlining my concern that the answers provided at question 2.3 and 2.8 of the Form F17 – Employer’s statutory declaration, indicated that the date of notification time was 27 July 2016 and the date the last Notice of Employee Representational Rights (the Notice) was given to an employee was 28 July 2016. It appeared that the stated notification time and the date the Notice was distributed to employees related to a previous application for approval of an enterprise agreement which was dismissed by the Commission on 4 April 2018. It was therefore not clear whether the Applicant had complied with its obligation to provide a Notice within the appropriate time frame in accordance with s.173(3) of the Act.

[4] The Applicant responded to the Commission on 7 June 2018 submitting that it had complied with the requirements of s.173(4) of the Act as it had already given the employees a Notice within a reasonable period before the notification time for the Agreement, notwithstanding the passage of time in relation to the issue of the Notice and the 4 April 2018 decision.

[5] The matter was listed for Mention Hearing, by Telephone before me on 22 June 2018. Mr Ross Jackson was granted permission to appear for the Applicant as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. At the Mention Hearing the Applicant submitted that s.173(4) of the Act applied for the purposes of this application on the basis that the Notice was issued within a reasonable period before the notification time for the Agreement. Representatives for the ANMF, the ASU and Mr Bell appeared at the Mention Hearing and supported the Applicant’s submission. Directions were issued for the filing of materials in relation to the Applicant’s position that s.173(4) applied for the purposes of the application.

[6] Section 173(1) of the Act requires that an employer take all reasonable steps to give notice of the right to be represented by a bargaining represented to each employee who will be covered by the agreement and is employed at the notification time. Section 173(3) of the Act provides that an employer must give the Notice as soon as practical, and not later than 14 days, after the notification time for the agreement. However, s.173(4) of the Act provides that an employer is not required to give an employee notice under subsection 173(1) of the Act if the employer has already given such notice under that subsection within a reasonable period before the notification time for the agreement.

[7] The meaning of s.173(3) of the Act was considered in Uniline Australia Limited 1where the majority of the Full Bench relevantly said at paragraph [115]:

“… Once an application is made to the Commission, bargaining for the agreement has concluded albeit that the agreement might not be approved for a variety of reasons, including for example, that it does not pass the better off overall test. In that event, the employer could if it wished, initiate bargaining for a proposed agreement, the effect of which will be to trigger a notification time following which a valid Notice must be given.” 2

[8] In this matter it is clear that a new notification time was triggered at a date after 4 April 2018 when the previous application for approval of the enterprise agreement was dismissed by the Commission. The Applicant seeks to rely on a Notice given to employees on 28 July 2016. Because a new Notice was not issued to employees following the last notification time, I must be satisfied that the Applicant had already given employees a Notice within a reasonable period before the notification time in accordance with s.173(4) of the Act.

[9] In Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater 3I found that for the purposes of section s.173(4), whether a period of time is reasonable or not depends on the particular circumstances in existence and in the context of negotiations, the high level of communication about the bargaining process throughout the relevant time period, the involvement of bargaining representatives and the low level of employee turnover that 16 months was a reasonable period of the purposes of s.173(4) of the Act in that case.

[10] The Applicant filed an outline of submissions and statements of Mr Brendan McGrath, Chief Executive Officer and Ms Gillian Hoysted, Manager – People and Governance for the Applicant. The Applicant submits that based on these materials and its application that the Commission can be satisfied of the requisite matters in Part 2-4, and in particular the Applicant’s compliance with s.173(4) of the Act and the Agreement should therefore be approved. 4

[11] The Applicant submits that the last notification time for the Agreement was 11 April 2018. 5 That is, a new notification time was triggered when Mr McGrath had a discussion with Mr King of the ASU about the dispute clause to be included in the proposed agreement.6 The Notice was therefore issued approximately 20.5 months before the last notification time.

[12] In summary, the Applicant submits that 20.5 months can be considered a reasonable period for the purposes of s.173(4) of the Act for the following reasons:

•  A valid Notice was issued to employees in July 2016 which complies with the requirements in the Act as to content and form.

•  There was a high level of frequent and comprehensive communication with employees as evidenced in the statements of Mr McGrath and Ms Hoysted. This included email updates about bargaining, outcomes of bargaining discussions and the agreement making process, Question and Answer documents were circulated to staff addressing key areas of interest for employees, as well as summary documents explaining key terms and conditions. Meetings and information sessions were also conducted with staff and online videos were sent via email which explained the Agreement.

•  There was a high level of engagement and involvement of employees in the enterprise agreement process which included at least a 79.2% participation rate of the staff employed by the Applicant at the time of each of the three votes. The Applicant submits this demonstrates employees were well informed about the process and how they could be involved and were aware of their right to be represented by a bargaining representative.

•  There was no change to the scope of the Agreement.

•  The union and employee bargaining representatives did not change which the Applicant submits removes any suggestion that there may have been confusion around who the relevant bargaining representatives were, or the ability to identify and contact those bargaining representatives. 7

[13] On 9 July 2018 the ANMF advised my chambers that it has no objection to the Applicant’s submissions and the ASU advised that it concurs with the Applicant’s contention that the relevant notice was issued within a reasonable period as contemplated by s.173(4) of the Act. APESMA did not file any materials in reply in accordance with the directions.

[14] The period of 20.5 months is a significant period of time. However, whether a period of time is reasonable or not depends on the particular circumstances in existence. It is not the case that a reasonable period of time is a fixed amount irrespective of circumstances. In other words, what is a reasonable period in one matter may not be reasonable in another. In this matter there was a high level of engagement, involvement and communication with employees about bargaining and the approval process throughout the 20.5 months, which is clear from the chronology of events outlined in Mr McGrath’s statement. Not surprisingly there has been some employee turnover in the period. 8 However, I consider the employee turnover was not of a high level and consistent with the level of employee turnover one might expect to find in a rural based local government organisation.

[15] Based on the uncontested evidence provided as to the context of the negotiations, the level of frequent communications, the consistent involvement of bargaining representatives and relatively low levels of employee turnover I am satisfied that the Applicant had already given employees a Notice within a reasonable period before the notification time in accordance with s.173(4) of the Act.

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

[17] The Australian Nursing and Midwifery Federation (ANMF), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[18] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 August 2018. The nominal expiry date of the Agreement is 24 July 2022.

COMMISSIONER

 1   Uniline Australia Limited [2016] FWCFB 4969

 2   [2016] FWCFB 4969 at [115]

 3   Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater [2016] FWC 1144

 4   Outline of Submissions of Wangaratta Rural City Council at [38]

 5   Outline of Submissions of Wangaratta Rural City Council at [18]

 6   Statement of Brendan McGrath at [70]

 7   Outline of Submissions of Wangaratta Rural City Council at [23] – [37]

 8   Statement of Brendan McGrath at [84]

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