Warralodge Pty Ltd T/A Gibb Bros
[2023] FWC 3276
•7 DECEMBER 2023
| [2023] FWC 3276 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Warralodge Pty Ltd T/A Gibb Bros
(AG2023/4210)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 7 DECEMBER 2023 |
Application for approval of the Gibb Bros Enterprise Agreement 2023 - application dismissed
An application has been made for approval of an enterprise agreement known as the Gibb Bros Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Warralodge Pty Ltd T/A Gibb Bros (the Applicant). The Agreement is a single enterprise agreement.
On 20 November 2022 my chambers wrote to the Applicant raising a number of concerns in respect of the Agreement. These were:
a. That the agreement provided for an expiry date that could extend beyond 4 years in accordance with s.186(5) of the Act;
b. Seeking evidence of the provision of the Notice of Employee Representational Rights being provided to relevant employees;
c. That employees were not provided with the final copy of the Agreement and 7 clear days’ notice prior to the commencement of voting in accordance with the requirements of s.180(3) of the Act;
d. Seeking a copy of the notice to vote that was provided to relevant employees;
e. Raising a number of issues that were inconsistent with the National Employment Standards (NES) but noting that the Agreement contained an NES precedence clause and seeking submissions on these issues;
f. Issues with respect to whether the Agreement passed the better off overall test (BOOT) in respect of the span of hours, overtime triggers, 40 hour week, part time employee hours of work, loaded rates/alternative individual agreements, accident pay, work during meal breaks and meal allowances.
On 23 November 2023, my chambers received a response from the Applicant’s representative addressing each of the issues raised and providing a draft undertaking to deal with some of the issues raised.
On 29 November 2023 my chambers wrote to the Applicant again and expressed concerns that the undertakings did not satisfy the BOOT. The Applicant responded on 30 November 2023 providing further submissions and undertakings.
On 1 December 2023 my chambers wrote to the Applicant again raising further concerns about the BOOT and seeking a copy of the email that was provided to employees in which they were provided with a final copy of the Agreement and given details regarding how the vote would be conducted in accordance with the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (SOP) at Paragraph 16.
On 4 December 2023 the Applicant provided a further revised undertaking and a copy of the correspondence sent to employees on 27 October 2023 including a copy of the Enterprise Agreement that was attached. That email said:
“Good afternoon Gibb Bros Team,
A reminder, due to recent changes in legislation, all collective agreements made prior to 31 December 2009 will automatically terminate from 6 December 2023. The agreement covering your employment, the Warralodge Pty Ltd t/a Gibb Bros Employee Collective Agreement 2009 (Agreement), is one of these agreements. Therefore, this Agreement will automatically terminate from 6 December 2023. After the Agreement terminates, minimum pay and conditions will typically be set by the relevant award, unless a new enterprise agreement is made.
Following the previous memo, please be advised that James Thomas will be your bargaining representative for the market’s employees. James will be your point of contact regarding any questions you may have pertaining to the new Gibb Bros enterprise agreement. Alternatively, you can approach myself, David, or Lisa Dwyer of Brismark HR.
Please find attached a copy of the Gibb Bros Enterprise Agreement 2023 for your records. Please read this document carefully and raise any issues with James within 7 days.
Enterprise agreements operate in place of the award and is an agreement between an employer and a group of employees that provides terms and conditions of employment, for example rates of pay. The registered agreement is compared to the relevant award to ensure the employee is better off overall under the registered agreement in order for it to be approved. Please see below link for further explanation should you need it:
the agreement to be approved, employees are required to vote. Voting will take place via a ballot on Monday 6th and Tuesday 7th November at the Gibb Bros Brisbane Market office (C Block) between 5am and 12pm. If you are unable to attend voting, an email vote is acceptable (if you feel comfortable doing so).
Kind regards”
After reviewing the email, I had further concerns and my chambers wrote to the Applicant on 5 December 2023 and raised those concerns. The Applicant wrote back the same day and provided their responses. I will provide my concern and the Applicant’s response as follows:
1. The email attached dated 31 October 2023 tells employees that their bargaining representative is James Thomas. It is not for the Employer to tell the Employees who their bargaining representative is. It is up to the employees to advise who they want as their bargaining representative if they wish to appoint one. This may be a breach of Principle 3 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023. The Deputy President seeks submissions from the Applicant in relation to this concern.
Response: The Applicant submits that they did not mislead employees as per Principle 3 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023. The employees were provided with the NERR, which communicates employees rights to be represented by a bargaining representative on 2 June 2023. The email sent on 31 October 2023, was communicating to all employees who the Employee Bargaining Representative is, based on the nomination received by the employer, and not the employer telling the employees who the Employee Bargaining Representative will be. Which in this case only one nomination was received, and was attached on lodgement.
Therefore the Applicant submits that they are not in breach of Principle 3 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
2. The email regarding the vote states that employees can vote by replying to their employer’s email with their vote. Principle 15(a) of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 states that the vote must not be disclosed to, or ascertainable by, the employer. The Deputy President seeks submissions from the Applicant in relation to this concern.
Response: The email regarding the vote was to provide an alternative option for those who may be on leave and if they felt comfortable to do so. It was not the intention of the Employer to breach Principle 15 (a) of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023, which states that the vote must not be disclosed to, or ascertainable by, the employer. The Applicant Submits that the intention was to provide an opportunity for all employees to vote, if they could not attend in person.
3. The Agreement sent to the employees on 27 October 2023 is not the final agreement that was submitted for approval. The Deputy President seeks evidence of when the final version of the Agreement was provided to employees, including a copy of the relevant email.
Response: The applicant submits that the Agreement sent to employees as an attachment on 27 October 2023, was the final copy that was then submitted for approval. The only difference between the Agreements is Clause 1.3.1 – were the expiry date was inserted prior to lodgement to ensure it would not exceed the nominal expiry date. Which is based on the Agreement commencing operation seven (7) days after the date of approval and therefore, the nominal expiry date needs to be not more than four (4) years from the date of commencement of operation.
In respect of the first response, I hold concerns that the employer nominated an employee bargaining representative on behalf of employees, notwithstanding it may well be that employees chose not to nominate a bargaining representative for themselves. This in itself does not, in my view, mean that the employer breached its obligations. There are occasions where employees choose for whatever reason not to get involved in this process.
In order to approve an enterprise agreement, the Commission must take into account the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (SOP) made under section 188B in determining whether it is satisfied that an enterprise Agreement has been genuinely agree to by the employees who will be covered by it. Paragraph 15 of the SOP requires that:
“Providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote
15. Employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner. This should include:
(a)a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer, and
(b)a method and period of voting that provides all employees entitled to vote with a fair and reasonable opportunity to cast a vote.” (Emphasis added)
It is clear from the correspondence that the Applicant did invite employees to provide their vote directly to their employer by email. This in my view is a breach of Paragraph 15 of the SOP.
Further, the Applicant acknowledges that the employees were never given a final copy of the Agreement before voting on it. They acknowledged that the nominal expiry date was inserted only prior to filing the agreement for approval. Whilst the Applicant submits this was because the agreement would operate for 4 years and they wanted to ensure that the date entered into the agreement would comply with this obligation, when looking at the Agreement itself, it is not clear that the Agreement was intended to run for 4 years to anyone reading it. The relevant clauses say:
“1.3 Period of Operation
1.3.1 This Agreement shall commence operation seven days after the date of approval
by the Fair Work Commission with a nominal expiry date of 6 December 2027.1.3.2 This Agreement shall be terminated only in accordance with the Fair Work Act 2009 (Cth) ('the Act').” (Emphasis Added)
The date was added after employees had voted on the Agreement. Therefore, the employees could not have known what the term of the Agreement would be when they voted on it. Further the Agreement that employees voted on was not the Agreement that was lodged, and I do not accept that entering a nominal expiry date in all the circumstances is a minor issue. The length of time an agreement operates is often a very important issue that causes parties to take considerable time to come to an agreement.
Even if I were to disregard the concerns in respect of the appointment of Employee Bargaining Representatives, my concerns about Paragraph 15(a) of the SOP and the fact that employees did not vote on the final copy of the Agreement that was lodged for approval do not satisfy me that employees genuinely agreed to the Agreement submitted for approval.
It is not necessary for me to consider the other concerns raised in respect of the BOOT, nor their responses, because the application’s non-compliance with s.188B results in the Agreement being incapable of approval.
The application is dismissed.
DEPUTY PRESIDENT
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