[2013] FWC 4168

[2013] FWC 4168

Download Word Document

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Walter Wright Cranes Pty Ltd
(AG2013/6981)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 27 JUNE 2013

Summary: whether a request for approval of agreement occurred 21 days after the last notice of employee representational rights was given - do new employees need to be given such notices? - meaning of “after the date on which the last notice under subsection 173(1) [...] is given” - issues of construction re “notification time” - explanatory memorandum - is any notice of employee representational rights issued a notice for the purposes of s.173?

[1] On 14 June 2013 an application was made by Walter Wright Cranes Pty Ltd (“the Employer”) for approval of a single enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The full name of the agreement for which approval was sought was the Walter Wright Cranes (Mackay Branch) Collective Agreement 2013 (“the Agreement”).

[2] An issue arose in the course of the consideration of the application for approval as to whether or not the Agreement had met the requirements of s.173 of the Act.

[3] At paragraph 2.8 of the Form F17 (a statutory declaration), the Employer had declared that the date on which the last notice of representational rights was given to an employee who will be covered by the Agreement (for the purposes of s.181(2) of the Act) had been 19 May 2013.

[4] At paragraph 2.8 of the Form F17, the Employer had also declared that the date on which voting for the Agreement commenced - for the purposes of s.181 of the Act - was 3 June 2013.

[5] The period of time that elapsed between the purported last notice of representational rights being given and the vote commencing for approval of the Agreement was 15 days.

[6] Section 181 of the Act provides as follows:

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.

[7] The Fair Work Bill 2008 Explanatory Memorandum relevantly provides as follows:

700. The legislative note to subclause 173(2) serves as a reminder to the reader that an employer cannot request employees to approve a proposed enterprise agreement under subclause 181(2) until 21 days after the last notice of employee representational rights is given.

[8] Section 181(2) of the Act stipulates that the request to approve a proposed enterprise agreement cannot be made until 21 days after the day on which the last employee representational rights notice (under s.173(1) of the Act) is given.

[9] In the current case, the Employer has declared that the last notice was given only 15 days prior to the request to approve the proposed Agreement.

[10] Section 173 of the Act 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.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.

[11] The issue here is whether or not the last notice of employee representational rights said to have been issued by the Employer is in fact a notice of the requisite kind.

[12] The Employer indicates that the notice to which it referred as being given on 19 May 2013 was a notice that was given to a new employee.

[13] Section 173 above does not stipulate that a notice of employee representational rights must be given to every employee who is employed by the employer at any time and in relation to whom the proposed agreement will have coverage.

[14] Rather, s.173(1) of the Act only requires that the notice of employee representational rights must be given to those employees who will be covered by the proposed agreement and who are employed at the “notification time”. My reasoning in this regard follows.

[15] The notification time is defined at s.173(2) of the Act and refers to the time at which certain events may take place (such as when the employer agrees to bargain or initiates bargaining for the agreement, or when a majority support determination or a scope order or a low-paid authorisation in relation to the agreement comes into operation).

[16] Item 698 of the Fair Work Bill 2008 Explanatory Memorandum provides as follows:

698. Subclause 173(1) requires an employer to take all reasonable steps to give notice to each employee of their right to be represented by a bargaining representative. Reasonable steps could include sending the notice by email to each employee or posting the notice to a forum or site that is known by and accessible to the relevant employees. The requirement applies to those employees employed at the notification time. Separate rules apply for proposed greenfields agreements.

[17] Thus, the Act does not require that an employer provide the notice of employee representational rights to any employees who are employed subsequent to the above events, which define the notification time.

[18] Further, if the contrary case were asserted, it would not be possible to meet the requirements of s.173(3) of the Act in relation to ensuring that the notice of employee representational rights is given no later than 14 days after the notification time for the agreement.

[19] This is because if subsequent such notices were required to be given to all employees who were employed more than 14 days after the notification time the purpose of s.173(3) would be defeated. And if new employees within the 14 day period were required to be given the notice of employee representational rights, effectively the Act would discriminate in relation to the giving of employee representational rights notices between those employees employed within 14 days of the notification time and those who were employed after that time period.

[20] It is sufficiently clear, in my view, that an employer need only issue one employee representational rights notice and that single notice must be given within 14 days after the notification time (as defined in the circumstances).

[21] Some complication arises, however, as a result of references elsewhere in the Act to multiple notices of employee representational rights being required to be given. Section 181(2) of the Act provides as follows:

[22] It cannot be construed however that the reference at s.181(2) of the Act to the day on which the last notice of representational rights had been given suggests a statutory direction to issue notices to all employees no matter when they are employed in relation to the notification time.

[23] If this were the case, an employer would need to contrive its recruitment timetable to accommodate the commencement of the access period under s.180(4) of the Act and the date of the request to approve the proposed agreement under s.181 of the Act.

[24] The references to prospective multiple notices of employee representational rights must only be taken to be a reference to the obligations that arises in contexts in which there are multiple employers who are making an agreement of a particular species.

[25] Section 172 of the Act sets out the various species of agreement that may include two or more employers:

172 Making an enterprise agreement

[...]

Single-enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi-enterprise agreements

(3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

(ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

[...]

Single interest employers

(5) Two or more employers are single interest employers if:

(a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or

(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

[26] The reference in s.181(2) of the Act must be taken to be a reference to the obligation that falls on any employer who may seek to make an agreement of the requisite kind to issue a notice of employee representational rights in relation to the notification time (but not otherwise). That is, where multiple employers sought to make a multi-employer agreement, the notification time in respect of the request to approve the agreement can only commence when the last employer gives its notice of employee representational rights.

[27] This construction is supported by Item 701 of the Fair Work Bill 2008 Explanatory Memorandum which provides as follows:

701. The notice of employee representational rights is required to be given as soon as practicable and not later than 14 days after the notification time (subclause 173(3)). If the proposed enterprise agreement will cover two or more employers, each employer will need to give the notice to its respective employees. [My emphasis]

[28] The reference to “each employer” in item 701 suggest the reference in s.181(2) of the Act to the day on which the last notice under subsection 173(1) of the Act is given is a reference to a circumstance in which an agreement is being made which involves more than one employer.

[29] I now return to the circumstances of the Agreement that is now before me.

[30] The Employer has declared to me that it issued its notice of employee representational rights to employees on 22 March 2013 at a meeting held for that purpose. However a subsequent notice was issued on 19 May 2013 to a new employee (who was employed more than 14 days after the notification period).

[31] But given that the Employer declares that a notice of representational rights was issued on 19 May 2013 (to a new employee) and the request to vote was made only some 15 days later (and not the 21 days stipulated at s.181(2) of the Act), can the application still be said to have been made in compliance with s.181(2) of the Act?

[32] It appears to me that only a notice of employee representational rights that it issued no later than 14 days after the notification period as defined has commenced can be taken to be a notice of employee representational rights for the purposes of s.173(1) of the Act.

[33] Any such other notice issued, even though it purports to have the requisite identity, is no more than a document without statutory standing. That is, such a document does not have the status of a notice of employee representational rights for the purposes of s.173(1) of the Act.

[34] Because of my finding in this regard, I find that the Agreement was made in compliance with the requirements of s.181(2) of the Act, and can therefore be subject to the ordinary approval process.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer