Yambuk Labour Solutions Pty Ltd
[2023] FWC 3213
•4 DECEMBER 2023
| [2023] FWC 3213 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Yambuk Labour Solutions Pty Ltd
(AG2023/4102)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 4 DECEMBER 2023 |
Application for approval of the Yambuk Labour Solutions Pty Ltd & The Australian Workers’ Union Agreement 2023 – Application dismissed
An application has been made for approval of an enterprise agreement known as the Yambuk Labour Solutions Pty Ltd & The Australian Workers’ Union 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 Yambuk Labour Solutions Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
On 14 November 2023 my chambers wrote to the Applicant and the Australian Workers’ Union (AWU) raising the following concerns:
a.An F18 had not been filed by the AWU and sought whether one had been submitted to another Commission email or was intended to be filed;
b.The Employer signatory did not indicate their position title in accordance with the requirements of the Fair Work Regulations 2009 (Cth) 2.06A(2);
c.The AWU had not signed the Agreement;
d.Information provided on the lodgement documentation indicated that NERR was given 7 days prior to the commencement of voting as opposed to the 21 days required by s.181(2) of the Act;
e.It was unclear from the Application as to when a proposed copy of the Agreement was provided to employees;
f.It appeared from the information provided that neither a reasonable opportunity nor reasonable time to consider the proposed agreement was provided to employees in accordance with paragraphs 4 to 7 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (the SOP);
g.It was unclear from the information provided whether casual employees who voted on the Agreement were employed at the time and entitled to vote in accordance with the Full Bench Decision in Kmart;[1] and
h.It was unclear how employees were informed of the time, place and method of the vote for the Agreement 7 full days before the vote started, or such other reasonable time as was agreed with the AWU, as set out by paragraph 16 of the SOP.
On 17 November 2023, having received no response from the parties, my Chambers sent further correspondence to the company and the union, noting that a response to the issues raised by the Commission was overdue, and that the employer should respond by no later than 20 November 2023. Still no response was received.
On 29 November 2023 my chambers rang the Applicant to seek a response. The Applicant indicated they were waiting to hear from the AWU.
On 29 November my chambers again wrote to the Applicant setting out the concerns again and letting the Applicant know that in its present form, the Application was incapable of approval. The Applicant was also advised that unless they could satisfy the concerns raised by 4:00pm on 1 December 2023, the Application would be dismissed.
The AWU has not responded to the issues raised in the correspondence of 14 November 2023, 17 November 2023 or 29 November 2023.
The Applicant again did not respond in the timeframe requested, however the Applicant did write back to my Chambers on 4 December 2023 and provided brief responses to my concerns as follows:
a.In respect to the AWU filing of the F18 that the Applicant believed the AWU “had signed this separately”;
b.That the Employer signatory was a Director of the Applicant;
c.In respect of why the AWU had not signed the Enterprise Agreement, the Applicant referred to their answer to the question regarding the F18;
d.With respect to the requirement that the NERR was required to be given to employees 21 days prior to the commencement as required by s.181(2) of the Act, that:
“We were advised by the AWU that this time was 7 days. If necessary, we can re-vote on the proposal”;
e.That the proposed Agreement was provided to employees 7 days prior to the vote but failed to provide a copy of the email or other evidence with respect to this;
f.With respect to my concerns that it appeared from the information provided that neither a reasonable opportunity nor reasonable time to consider the proposed agreement was provided to employees in accordance with paragraphs 4 to 7 of the SOP, the Applicant said:
“The workers had been in consultation with the AWU prior to being supplied with a copy of the proposed EBA. The EBA is a standard AWU eba and the employees were advised to seek advice from their union representative, I understand that nobody sought advice from their on sight representative, and at the vote, I asked if (sic) any worker had any questions about the proposed EBA. I believe that they had sufficient knowledge and time to consult if they so desired”;
g.With respect to my concerns about whether casual employees who voted on the Agreement were employed at the time and entitled to vote in accordance with the Full Bench Decision in Kmart,[2] that:
“The vote was conducted on site, any person voting was working on the day of the vote, that includes casual employees”.
h.In response to my concern about whether relevant employees were informed of the time, place and method of the vote for the Agreement 7 full days before the vote started, or such other reasonable time as was agreed with the AWU as set out by paragraph 16 of the SOP, that:
“We held a meeting and provided copies of the proposed EBA, 7 days later we conducted the secret vote.”
However no supporting evidence of that notification was provided.
In consideration of these responses and the lack of any response from the AWU, the Agreement remains unsigned by either the AWU or an Employee Bargaining Representative and therefore does not comply with 2.06A(2) of the Fair Work Regulations 2009.
Further, on the basis of the material before me and the Applicant’s correspondence of 4 December 2023, the NERR was not provided to relevant employees at least 21 days before they voted on the Agreement which does not comply with s.181(2) of the Act.
I also note that despite repeated requests, there is no evidence before the Commission that:
a.casual employees who voted on the Agreement were eligible to do so; or
b.that employees were informed of the time, place and method of the vote for the Agreement 7 full days before the vote started, or such other reasonable time as was agreed with the AWU.
Whilst it is possible that the Applicant may have this evidence, they have failed to provide it and even if they had done so, the Agreement is otherwise fatally flawed and incapable of approval for the reasons set out in this decision.
In consideration of the material before me, I am not satisfied that employees were provided with a reasonable opportunity to consider the Agreement in accordance with the SOP.
In order to approve an enterprise agreement, the Commission must be satisfied that it meets the requirements at ss.186, 187, 188 and 190 of the Act. I am not satisfied that these requirements have been met. I consider that the parties have been provided with a reasonable opportunity to address the concerns that were raised on 14, 17 and 29 November 2023. The Agreement remains incapable of approval.
The application is dismissed.
DEPUTY PRESIDENT
[1] Appeal by Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599.
[2] Appeal by Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599.
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