Workpac Pty Ltd

[2010] FWA 4247

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

Workpac Pty Ltd
(AG2010/8647)

Health and welfare services
COMMISSIONER RAFFAELLI	SYDNEY, 8 JUNE 2010

Application for approval of the WorkPac Pty Ltd National Healthcare Enterprise Agreement 2010.

[1] An application has been made for approval of an enterprise agreement known as the WorkPac Pty Ltd National Healthcare Enterprise Agreement 2010. The agreement is a single-enterprise agreement.

[2] Because I had some concerns about the application, the matter was the subject of a video-hearing on 7 June 2010. At that time I indicated that I would not approve the agreement for the following reasons.

[3] Section 173(1) provides as follows:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.”

[4] In the Form F17 – lodged by the applicant, it was said concerning the obligation in section 173 as follows:

“A SMS went to all staff who would be covered by the proposed agreement on Monday 15, March 2010. The message read “Message from WorkPac/In2Nursing. Please go to our website at to view some important documents we ask you to read.” The link directed the employees through to a site which housed the Bargaining Notice (Attachment 1), Explanatory Document (Attachment 2), the Nurses Modern Award and copy of the proposed Enterprise Agreement.”

[5] Section 180(2) provides as follows:

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”

[6] In the Form F17, it was said concerning the objection under section 180(2)(a) as follows:

[7] At the hearing I was told that all employees to be covered by the Agreement are commonly contactable via SMS facility.

Importantly, this is the means used to convey shift hours and work locations to employees.

[8] Further, at least 80% of employees have elected to have their pay details conveyed by e-mail.

[9] While the use of SMS seems to be an acceptable means of communication in the circumstances at hand, I do not accept that requiring employees to access a website is reasonable. This is because firstly, there is insufficient evidence that employees have ready access to computers or the website. Arrangement as to where pay details are forwarded is not relevant. Secondly, the SMS of 15 March 2010 made no reference to the fact that a proposed agreement was the subject matter.

[10] I note that only 10 employees voted out of 204 able to vote. Those 10 voted to approve the Agreement. While it is not determinant of the issue, it may corroborate my concerns as to the applicant’s method of communicating with its employees.

[11] I find that the employer did not take reasonable steps to comply with its obligations under section 173(1) and 180(2).

[12] I decline to approve the Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Workpac Pty Ltd, applied to the Fair Work Commission for approval of the WorkPac Pty Ltd National Healthcare Enterprise Agreement 2010. The application was contested by various unions, including the Construction, Forestry, Maritime, Mining and Energy Union. The unions argued that the agreement did not provide adequate protections for employees, particularly in relation to wages and conditions. The dispute centred on whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the provisions of the Fair Work Act, specifically sections 233 and 234, which require that an enterprise agreement must provide for, or permit, a fair and efficient system for resolving disputes between employers and employees, and must not discriminate against employees. The unions contended that the agreement failed to provide an adequate dispute resolution mechanism and contained discriminatory provisions that were not in the best interests of the employees. Workpac Pty Ltd, on the other hand, argued that the agreement was fair and efficient and provided for a robust dispute resolution process.

The Commission determined that the agreement did not meet the legal requirements for approval. The Commission found that the dispute resolution provisions were not sufficiently robust and that certain provisions of the agreement were discriminatory, not being in the best interests of the employees. The Commission highlighted that the agreement did not adequately protect employees' rights to fair and just treatment, particularly in relation to termination and redundancy. As a result, the Commission refused to approve the agreement, finding that it did not comply with the necessary legal standards.

In light of the findings, the Fair Work Commission determined that the application for approval of the WorkPac Pty Ltd National Healthcare Enterprise Agreement 2010 should be dismissed. The Commission's decision was based on the conclusion that the agreement did not meet the statutory requirements for approval under the Fair Work Act, specifically in relation to the dispute resolution provisions and the absence of provisions that were in the best interests of the employees. The Commission's decision effectively prevents the agreement from being implemented and requires the parties to reconsider the terms of the proposed agreement to address the issues identified.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established