Can agreements still be approved despite breaches?

Cases

Can agreements still be approved despite breaches?

Enterprise agreements are legal documents and certain formalities must be followed to ensure they are not rejected by the FWC. However, there is some flexibility in how these rules are interpreted, as these cases illustrate.

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Enterprise agreements are legal documents and certain formalities must be followed to ensure they are not rejected by the FWC.

However, there is some flexibility in how these rules are interpreted, as these cases illustrate.

Very short time for protected action ballot ok


As most workers affected had voted in a protected action ballot that was open for only two and a half hours the FWC ruled the ballot was legitimate even though there had been a technical breach.

Deputy president Hamburger said the breach meant the ballot was conducted in a more expeditious manner than was envisaged by the terms of the order. The number of employees on the roll of voters was 36; the number who voted was 30. In other words the ‘turnout’ was 83 per cent.

All the questions were supported either by all 30 employees or by 29 employees with one opposed.

"I am satisfied that the breach of the protected action ballot order was only a ‘technical breach’," DP Hamberger said.

Suez Recycling Recovery Pty Ltd v Transport Workers' Union of Australia [2016] FWC 3007 (12 May 2016) 
 


Union as bargaining agent was obvious


A FWC full bench has rejected an employer argument that the CFMEU's failure to notify the employer it was a bargaining agent excluded the union from being a bargaining agent.

The FWC had been notified by the CFMEU but due to an oversight the employer had not been notified.

The full bench departed from authority in making this ruling saying:

"… In the circumstances of the current matter, Commissioner Gregory was satisfied that the CFMEU was a bargaining representative for the proposed enterprise agreement. That proposition, when advanced by the CFMEU, was challenged by GEMCO [employer] and the Commissioner took steps to satisfy himself that the CFMEU was a bargaining representative. His conclusion that the CFMEU was a bargaining representative was not challenged on appeal.

"Further the Commissioner received written notice from the CFMEU that it wished to be covered by the agreement prior to its approval... In those circumstances, the requirements in s201(2) for the making of the note that the CFMEU was covered by the agreement were satisfied."

Groote Eylandt Mining Company Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FWCFB 2432 (3 May 2016)
 


Notice of employee representational rights came too late


Section 173(3) of the Fair Work Act provides: “Notice of employee representational rights… (3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.”

Commissioner Roe in the FWC ruled that this requirement was mandatory. He rejected AiGroup's argument that failure to comply with section 173(3) did not invalidate the notice.

The commissioner agreed with Vice President Hatcher's assessment in Transport Workers' Union of Australia v Hunter Operations Pty Ltd – i.e,  a valid notice must be issued in accordance with s173(3).

Uniline Australia Limited [2016] FWC 2973 (13 May 2016) 
 


Approval of agreement – tortured time


This decision concerned an appeal by AJ Convenience Services Pty Ltd T/A 7-Eleven Rozelle and 7-Eleven Bexley (the appellant) against the dismissal of an application for approval of an enterprise agreement known as the 7-Eleven Fuel and Non-Fuel Enterprise Agreement 2015.

A full bench essentially restated that the employer’s submission for approval of the agreement was inadequate, but did grant the appeal on a very limited basis – that of using an incorrect comparator award.

The application for approval of the agreement was referred to deputy president Lawrence for further consideration.

Appeal by AJ Convenience Services P/L t/a 7-Eleven Rozelle & 7-Eleven Bexley against decision of Roe C of 18 January 2016 [[2016] FWC 330] [2016] FWCFB 2116 - Hamilton DP Lawrence DP McKenna C 5 May 2016
 


Wrong website, wrong form: no agreement


The employer argued it was a "trifling" error in its bargaining rights notice when it mistakenly listed the tribunal's [FWC] website as a source of information rather than the Fair Work Ombudsman.

Deputy president Bull disagreed and accepted TWU arguments that s186(1) prevented him approving the deal for Transit (NSW) Services Pty Ltd T/A Transit Systems as the notice of representational rights notice deviated from the form prescribed in Schedule 2.1 of the Fair Work Regulations.

The deputy president concluded: “… I cannot accept that providing an incorrect website reference fits within the ambit of the de minimis principle. The incorrect website could not be described as being insignificant, minor or inconsequential.

"… It follows that s181(2) has not been complied with as employees have been directed to an incorrect website. I therefore cannot be satisfied that the agreement has been genuinely agreed to as I am required under s186(2)(a) as no valid notice was provided.

"… While being fully conscious of the inconvenience this will cause the employer and no doubt some employees, I cannot approve the agreement and the application for approval of the agreement is dismissed.”

Transit (NSW) Services Pty Ltd [2016] FWC 2742 (3 May 2016) 

See also: Agreements and bargaining 

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