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

[2010] FWA 4247

8 JUNE 2010