Application by Premium Fresh Tasmania Pty Ltd [2016] FWC 2498 (20 April 2016) [2016] FWC 2498 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement Premium Fresh Tasmania Pty Ltd (AG2016/2429) COMMISSIONER ROE MELBOURNE, 20 APRIL 2016 Application for approval of the Premium Fresh Tasmania Enterprise Agreement 2016. Employees permitted to vote earlier than the time specified in the notice given to employees. Access period not provided. Lack of genuine agreement. [1] An application has been made for approval of an enterprise agreement known as the Premium Fresh Tasmania Enterprise Agreement 2016 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). It has been made by Premium Fresh Tasmania Pty Ltd (the employer). The Agreement is a single enterprise agreement. [2] I raised a number of concerns with the employer and two of the bargaining representatives, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW). The AMWU and the NUW also raised concerns in their F18 notices to be covered by the Agreement. There was considerable correspondence between the parties and then the matter was finalised at a hearing on 15 April 2016. [3] I am satisfied that the Agreement cannot be approved because I am not satisfied that Section 186(2)(a) “genuine agreement” has been met. [4] I am also concerned that the scope of the Agreement was not fairly chosen because the coverage clause excludes casual employees whilst another clause purports to include certain casuals. I accept that short term seasonal casuals may be operationally or organisationally distinct from the other employees and that such a scope may be fairly chosen. However, the lack of clarity of coverage of the Agreement means that it was not fairly chosen. I am also concerned that the BOOT may not be met. Clause 1.1 of the Agreement provides for individual employment offers to vary and prevail over the terms of the Agreement. Of course a provision which allows for over Agreement conditions is acceptable but an undefined variation provision is not. There are a number of other BOOT issues which were drawn to the attention of the parties and which will be considered prior to a further vote and application for approval. There are a number of matters in the Agreement which are superior to the relevant Awards. [5] The reasons why I am not satisfied that there was “genuine agreement” are as follows. [6] It is not contested that: ● Employees were provided with access to the proposed Agreement in the lunch room and the main office on 15 February 2016 (F17 Statutory Declaration). The employer says that they provided access to the agreement and incorporated materials as required by Section 180(2)(b). They do not assert the alternative, that copies were provided to each employee as required by Section 180(2)(a). ● Employees were provided with a notice which set out the voting process as follows: “Next Tuesday 23 rd February we will have the vote and I would urge you all to vote yeas to ensure the business can remain viable and we can continue to employee(sic) and operate into the future. There will be a locked ballot box in the office and the votes will be counted by Sharon and an employee bargaining rep.” 1 ● Employees were also provided on 15 February 2016 with access to a document which summarised the changes made to the existing agreement in the Agreement. ● Two employees were permitted by the site manager to vote early. One voted on 17 th February and the other voted on 18 th February. Both employees requested to vote early because they were going on annual leave. 2 ● The votes of the two employees who voted early were counted as valid votes. ● 59 employees will be covered by the Agreement, 54 votes were cast of which 32 were in favour and 22 were against. ● The unions had concerns about aspects of the Agreement, particularly the term of the Agreement and sought to express those concerns to employees. There were also seven individual employees who signed instruments of appointment as bargaining representatives. The employer strongly urged employees to vote in favour of the Agreement. [7] The requirement for genuine agreement in Section 186(2)(a) is defined in Section 188: “188 When employees have genuinely agreed to an enterprise agreement An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that: (a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement: (i) subsections 180(2) , (3) and (5) (which deal with pre-approval steps); (ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and (b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and (c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.” [8] Relevantly Section 180(2) provides: “ 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.” [9] The access period referred to in Section 180(2) for a proposed enterprise agreement is the seven day period ending immediately before the start of the voting process referred to in Section 181(1) of the Act. Section 181 of the Act provides: “ 181 Employers may request employees to approve a proposed enterprise agreement (1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it. (2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given. (3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.” [10] Section 180(3) and (4) of the Act provides: “(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement: (a) the time and place at which the vote will occur; (b) the voting method that will be used. (4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1). ” [11] Although Section 188 does not refer to Section 180(4) both Section 180(2) and 180 (3) refer to the access period for the agreement which is defined by Section 180(4). [12] The Full Bench in Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc 3 made some relevant findings about how early voting impacts upon these considerations: “Although we accept that in some circumstances the distribution of the voting material to employees before the date on which votes are to be cast might result in the access period ending at some stage other than the day before the publicised date on which voting to approve an agreement begins, we do not accept that this will be the result in every case. Much will depend on the circumstances. Thus, for example, if an employer distributes voting material before the date on which voting is to take place or begin, accepts a vote or votes from employees which have been cast before voting for the agreement is to begin and counts the vote or votes as valid, then it might be said that the voting process began on the day the first of those employees cast a vote. Consequently, the access period will have ended on the day before that date. However, if the employer has advised the employees who will be covered by an agreement of the date, method and place of voting and without more merely distributes ballot papers to employees before the date on which the voting is to commence or take place, in our view it cannot be said that the “voting process” commenced at the time the employer distributed the ballot papers. … It seems to us, therefore, that an agreement may only be approved through a vote of employees employed at the time of the vote who will be covered by the agreement. The request to approve the agreement and the vote are not separate stages of the voting process. Thus, we consider that the voting process starts when an employee is first able to cast a valid vote to approve the agreement and not at some earlier time when an employer may provide to employees the ballot paper.” 4 [13] Senior Deputy President Harrison rejected an application made by the Hydro Electric-Corporation for approval of an enterprise agreement known as the Hydro Tasmania Enterprise Agreement 2013 – 2017 5 because the access period had not been provided as required by Section 180(4) and therefore Sections 180(2) and (3) had not been complied with. [14] Mr Fitzgerald for the employer submitted that: “The relevant date which I respectfully submit the Commission should consider is the actual vote count day and the 2 early votes do not impact on the integrity of the overall voting process and accordingly I would urge the Commission rule that there has been no breach or s 180 In any event a Full Bench decision of FWC in McDonalds Australia Pty Ltd v Shop Distributive and Allied Employees Association [2010] FWAFB 4602 at par 13 “clarified that in enforcing pre- approval requirements, the FWC should adopt a practical, non-technical manner, making reasonable efforts to clarify matters with the parties during the proceedings and using undertakings to clarify and remedy concerns where possible” I would urge the Commission to review the reasons why this occurred and conclude that the employer agreed to the request of the 2 employees in good faith and it was not at the initiative of the employer and in accordance with the above decision the Commission should rule that by the 2 employees voting early did not impact adversely on the overall integrity of the voting process.” [15] I accept that in considering matters such as whether or not reasonable steps were taken to explain the impact of the Agreement and to provide employees with access to the Agreement and incorporated documents a practical and non-technical approach should be taken. The same approach should be taken to the BOOT and the opportunity to provide undertakings. However, this flexibility cannot extend to mandatory requirements such as the duration of the access period and the 21 day period between the Notice of Representational Rights and the voting. There is no flexibility in respect to these requirements. They have a clear legislative purpose which includes providing the opportunity for bargaining, the opportunity to consult and agitate for a position, and the opportunity to be adequately informed about the impact of the proposed Agreement. [16] I am satisfied that the voting process starts when an employee is first able to cast a valid vote to approve the agreement. In the circumstances of this case the voting process started on 17 February when an employee was able to case a valid vote to approve the agreement. As a consequence the access period was from 16 February to 17 February 2016, notice having been given on 15 February 2016. The start of the access period was in fact 9 February 2016. At that time employees were not advised of the time, place and method of voting as required by Section 180(3). Section 180(2)(b) was also not met in that the relevant employees did not have access, throughout the access period for the agreement, to a copy of the Agreement. It is not suggested in the F17 statutory declaration that Section 180(2)(a) was met. [17] I also note that in the circumstances of this case the employer decided to put the Agreement to a vote notwithstanding the desire of the union bargaining representatives to continue negotiations to achieve a different outcome. In such an environment the access period enables the employer, the employees and the bargaining representatives to have access to the relevant documents, to understand the documents and their implications, to seek advice, to agitate for their position and to allow for the possibility for changed positions. Where the access period is not provided to all employees it is not possible to predict with any certainty what impact that might have had on the outcomes. [18] As Sections 180(2) and 180 (3) have not been met it follows that Section 188 cannot be met and because there is not “genuine agreement” Section 186 is not met and the Agreement cannot be approved. The application is dismissed. COMMISSIONER Appearances : Mr W Fitzgerald and Mr R Ertler appeared for the Applicant. Ms E Barrett appeared for the NUW. Ms G Churchill appeared for the AMWU. Hearing details: 2016 Melbourne by video to Hobart and telephone April 15 1 Copy of notice to employees dated 15 February attached to F17. 2 Exhibits P2, P3, P4 and P5. 3 [2015] FWCFB 3545 . 4 [2015] FWCFB 3545 at [16] and [20]. 5 [2014] FWC 4169 . Printed by authority of the Commonwealth Government Printer <Price code C, PR579266>