[2024] FWC 3357 1 Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement Novocastrian Electrical Contractors Pty Ltd (AG2024/3018) NOVOCASTRIAN ELECTRICAL CONTRACTORS PTY LIMITED SINGLE ENTERPRISE AGREEMENT 2024 DEPUTY PRESIDENT SLEVIN SYDNEY, 3 DECEMBER 2024 Application for approval of a single-enterprise agreement [1] Novocastrian Electrical Contractors Pty Ltd (NEC) has applied for approval of an enterprise agreement known as the Novocastrian Electrical Contractors Pty Limited Single Enterprise Agreement 2024 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the Agreement if the requirements in ss. 186 and s 187 are met. [2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has members employed by NEC, was involved in correspondence with NEC about the Agreement, and sought, unsuccessfully to be included in bargaining. Pursuant to s. 590 of the Act I permitted it to be involved in the approval process. I did so on the bases that it has members, has a desire to be covered by the Agreement, and made attempts to be involved in the bargaining for the Agreement. [3] The CEPU opposes the approval of the Agreement. It also gives notice under s. 183 that, should the Agreement be approved, it wants to be covered by it as it was a default bargaining representative for some employees. [4] In support of its application NEC relied upon the statutory declaration of its Finance Manager Tracey Wooderson filed with the application, A further statutory declaration of Ms Wooderson and statutory declarations of Callan Blanch, WHS Officer, and Steven Krause, Employee Bargaining Representative. In opposition the CEPU relied upon two statements of Ash Bamford, Union Organiser. DECISION [2024] FWC 3357 2 [5] At the hearing of the matter three issues arose. The first was whether the CEPU was a bargaining representative for the Agreement. The second was whether the Commission can be satisfied for the purpose of s. 186(2)(a) that the Agreement was genuinely agreed to by the employees. The third was whether the Agreement passes the better off overall test as required by s. 186(2)(d). Was the CEPU a Bargaining Representative? [6] The CEPU contends that it was a bargaining representative for the Agreement. NEC asserts that the CEPU was not a bargaining representative because each of the employees nominated others as their representatives for the Agreement. [7] The Agreement will replace the Novocastrian Electrical Contractors Pty Ltd Single Enterprise Agreement 2017. The nominal expiry date for the 2017 Agreement was 16 January 2021. On 23 May 2024 the CEPU wrote to NEC requesting, pursuant to s. 173 of the Act, that NEC bargain for a replacement agreement. The letter required NEC to issue a Notice of Representational Rights as soon as practicable, but within 14 days of the Act. NEC issued NERR’s to all employees be email dated 6 June 2024. [8] On 3 July 2024 a meeting of employees occurred at which representation for bargaining was discussed. As a consequence, each of the employees provided NEC with a written notice that they were appointing someone other than the CEPU as their bargaining representative. The effect of such a notice is that the CEPU could no longer be the default bargaining representative for its members covered by the Agreement. [9] The timing of these notices is significant. I was provided with 16 documents signed by employees of NEC appointing Mr Jesse Sinclair as a bargaining representative. Each of these was signed on 3 July 2024. I was also provided with 17 documents signed by employees of NEC and dated 3 July 2024 appointing Steven Krause as a bargaining representative. Text messages and emails were also provided from 5 other employees nominating either Mr Jesse Sinclair or Mr Krause as bargaining representatives. The last of these was dated 19 July 2024. These documents account for all of the employees who were covered by the Agreement. I note that 3 of the documents nominate both Mr Sinclair and Mr Krause as representatives. This gives rise to an issue as to whether those nominations were valid. This issue was not raised and given my findings below there is no need to address it here. [10] The CEPU does not contend that once these documents were provided to NEC it was still a bargaining representative for the Agreement. It contends that as it has members who were covered by the Agreement it was, at least up until the time that the notices were provided, the default bargaining representative for those members. It acted in that on 23 May 2024 when it sought that bargaining commence and on 9, 17 and 26 July 2024 when Mr Bamford, wrote to NEC seeking to be involved in bargaining. [11] A Full Bench of this Commission in CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 dealt with a similar situation in which an employer commenced bargaining on 4 February 2014 and the union had a member covered by the Agreement when bargaining commenced which later gave notice under s. 176(2)(e) that they wanted to be [2024] FWC 3357 3 represented by another person. That notice as provided to the employer on 14 February 2014. The Full Bench concluded as follows: [47] Given our construction of s.183 of the FW Act, it follows that as the CFMEU was a bargaining representative for the proposed agreement for the period between 4 February 2014 and 14 February 2014 it was entitled to give notice that it wished to be covered by the Agreement. The CFMEU gave notice after the Agreement was made and before it was approved that it wished to be covered by the Agreement. To the extent that the Senior Deputy President concluded that the CFMEU was not entitled to give notice under section 183 and did not note in the Approval Decision that the Agreement covers the CFMEU, her Honour was in error. [12] The circumstances here are the same. It is not contested that the CEPU had members covered by the Agreement at the time the notice of bargaining was provided to employees on 6 June 2024. By operation of s. 176 it was the default bargaining representative from that time until notices were provided to NEC from its employees that someone else was to represent them. Those notices were not provided until at the earliest 3 July 2024 and in some cases later. Consequently, the CEPU was a default bargaining representative at least from 6 June 2024 until 3 July 2024. It entitled to request to be covered by the Agreement. Genuine Agreement [13] Section 186(2)(a) of the Act provides the Commission must be satisfied that an enterprise agreement has been ‘genuinely agreed to’ by employees. The CEPU contend that I cannot be satisfied that there was genuine agreement because: a) The vote for the Agreement was by show of hands. b) NEC has not established that all of the employees requested to vote had sufficient interest in the agreement and are sufficiently representative. c) Employees were confused about their right to be represented. d) NEC did not take reasonable steps to explain the Agreement to the employees. [14] I am satisfied on the material before me that the second, third and fourth issues raised by the CEPU are not made out. [15] The Agreement does not have a coverage clause. The parties to the Agreement are defined in clause 2 - Definitions in this way: The Parties to this agreement shall mean the Company and all of its Employees engaged in any of the classifications specified in Schedule A of this Agreement. [16] The employees who voted were the employees engaged in the classifications described the Schedule. [17] The only suggestion that there was any confusion was evidence of Mr Bamford that a member of the union told him that he did not know signing a nomination form meant the union could not be involved in the bargaining. The nature of this evidence is such that I cannot find that the employees were confused about their right to be represented. The evidence is indirect evidence that one employee was mistaken about the effect of the document he signed and provided to the employer. The document is clear that the employee was nominating someone other than the union to be the bargaining representative. [2024] FWC 3357 4 [18] On the fourth issue raised by the CEPU, I am satisfied that NEC took reasonable steps to explain the effect of the Agreement to employees before the vote. I am satisfied because a draft agreement was provided to employees on 20 June 2024. There were discussions at toolbox talks on 3 July 2024 where an explanation was given that there were no substantial changes to the current agreement save for rates of pay and the addition of Domestic Violence leave and Casual Conversion clauses. The bargaining representatives were in touch with the employees about the Agreement. In later discussions other changes were made at the request of employee representatives. A meeting of apprentices was held on 24 July 2024 to deal with issues relevant to those employees. The final draft was provided on 29 July 2024. [19] As to the first issue, going to the nature of the vote, the employees were informed by email dated 29 July 2024 that a “show of hands” vote would take place at a toolbox meeting on 7 August 2024. On 5 August 2024 an email and SMS message was sent to all employees reminding them of the vote and informing them that any employee unable to attend could vote by email or SMS message on 7 August 2024. The vote occurred on 7 August 2024, at the end of a toolbox meeting. There were 37 employees covered by the Agreement on the date of the vote. [20] In the statutory declaration accompanying the application Ms Wooderson, who is NEC’s Finance Manager stated that management representatives left the meeting before the vote took place. In a later statutory declaration, which addressed issues raised by the CEPU, Ms Wooderson indicated that she was present for the vote and she and Mr Callan Blanch counted the votes. Mr Blanch confirmed this. Thirty attended the meeting and all 30 voted in favour of the Agreement. [21] Section 188(1) provides that when considering whether an agreement has been genuinely agreed to the Commission must take into account the statement of principles made under s. 188B. The statement of principles relevantly provides that at [15] as follows: 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. [22] The principle is aimed at the quality of the agreement achieved and focusses on employees being given the opportunity to vote in a free and informed manner. To that end it provides that the voting process should ensure that the vote of each employee is not disclosed or ascertainable by the employer. Here the vote was by show of hands. The CEPU accepted that a show of hands vote is not impermissible under the principles. I accept that is the case. However, where a show of hands is used it should be done in a way that the employees can be confident when they cast their vote that the way they voted will not be disclosed to the employer. [2024] FWC 3357 5 [23] In this case the vote was counted by the company’s Finance Manager. Each employee could not be comfortable at the time of the vote that the way they voted would not be disclosed to their employer. If a show of hands vote was to be used the count should not have been conducted by a manger. To do so is contrary to the principles. I am required to take the principles into account in assessing whether the test in s. 186(a) is met. [24] Given the manner in which the vote occurred, and taking into account the Principles, I am not satisfied that the Agreement was genuinely agreed to. The voting method used was contrary to principle 15 a.. Better Off Overall Test [25] For completeness, the issues raised going to the better off overall test were dealt with in undertakings provided by NEC. I am satisfied that any concerns so far as the better off overall test would be met by those undertakings and that they meet the requirements is s. 190(3) of the Act. Conclusion [26] The only issue that prevents the Agreement being approved is the manner in which the Agreement was voted on by the employees. The show of hands vote should not have been counted by a member of management. I am not satisfied that the employees were given a reasonable opportunity to vote freely as the process followed did not ensure that the vote of each employee was not disclosed to or ascertainable by NEC. [27] As I am not satisfied that the Agreement was genuinely agreed to under s. 186(2)(a) I can not approve the Agreement. [28] The application is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer < PR781961>