Employees must be informed of right to representation for s170lk agreement to be certified

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Employees must be informed of right to representation for s170lk agreement to be certified

An employer's notice of intention to make a s170LK agreement must inform employees that any employee who is a union member and whose union covers the relevant area may request that union to represent that employee in meeting and conferring with the employer about the agreement.

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An employer's notice of intention to make a s170LK agreement must inform employees that any employee who is a union member and whose union covers the relevant area may request that union to represent that employee in meeting and conferring with the employer about the agreement. This requirement is distinct from an employer merely inviting employees to inform the employer of the wish to be represented by a union or agent, whereupon the employer would contact the nominated union or agent.

Employers wishing to have s170LKagreements certified must comply in the strictest sense with the requirements outlined in s170LK(2) - 170LK(8). In Application by Egan Bros Plumbing & Building Services Pty Ltd for the making of s170LKCertified Agreements, Print S9378, [2000] 1033 IRCommA (21 August 2000), the federal Commission dismissed two applications for certification because the employer imposed conditions that were against the spirit of s170LK(4).

Background and Legislation

On 14 July 2000, Egan Bros Plumbing & Building Services Pty Ltd (the employer) applied to the federal Registry for the certification of two s170LKagreements. Section 170LKcertified agreements may be made between an employer and a valid majority of employees whose employment will be subject to the agreements. Essential in making a s170LKagreement is the requirement that the employer provide employees with at least 14 days' notice, in writing, of the intention to make the agreement [s170LK(2)]. The legislation also requires that the notice inform employees that any employee who is a union member and whose union covers the relevant area, may request that union to represent that employee in meeting and conferring with the employer about the agreement [s170LK(4)].

In this matter the applications for certification of the two agreements was accompanied by statutory declarations which evidenced that:

  • the agreements were provisionally approved by a meeting of employees on 26 June 2000;

  • employees received a letter on 27 June 2000, to confirm the notice of the agreement, identify the 14 day cooling off period and to "...invite employees to inform the employer if they wished to be represented by an agent or union representative"; and

  • a final vote was taken on both agreements on 10 July 2000 and that each agreements was made on that day.

Commission's initial concerns

Examining the statutory declarations and the notice of intention, Williams SDP was initially concerned that the 14 days' notice required by s170LK(2) had not been provided, and that the notice did not contain the information required by s170LK(4).

It is for this reason that on the day prior to the hearing the Commission received from the employer a letter that sought to withdraw the original statutory declarations. The letter enclosed fresh statutory declarations in support of the two applications. The new declarations were essentially in the same terms except that they now evidenced that as the vote taken on 10 July 2000 was not after at least 14 days of employees receiving the notice; a further and final vote was taken on 15 August 2000.

Decision

The Senior Deputy President noted that s170LK(2) - s170LK(5) set out a number of requirements that must be met before an agreement may be made. The use of the word "must" in the Act suggests that the sub-sections are not directives but are mandatory requirements. Non-compliance with those requirements would render an application for certification of that agreement invalid.

Section 170LK(4) is explicit in outlining the entitlement of an employee for representation in meeting and conferring with the employer about the agreement. In this matter Williams SDP was of the view that the notice provided pursuant to s170LK(2) did not contain a statement in the terms required by s170LK(4). Instead the employer's notice invited employee's to inform the employer of the wish to be represented by a union or agent, upon which the employer would contact the nominated union or agent.

There is a distinction between an employee being able to request representation and an employer stating that, on being advised by an employee that she or he wishes to be represented by a union, it will make contact with the union. According to the Williams SDP:

The former involves the freedom of an employee to contact the union and to request representation by the union. That contact may be made without prior advice to the employer. The latter relies upon the employer being first advised by the employee that the latter desires representation by a union and the employer then making the contact with the union, effectively, on the employee's behalf.

Senior Deputy President Williams referred to the Full Bench decision in Re SDAEA & Ors, Print R4468, [1999] 450 IRCommA (6 May 1999) in rejecting the contention that the notice in this case was such that it placed a positive obligation on the employer to ensure that once it had been approached it would make contact with the employee's nominated union. Such a construction of the terms of the notice is simply not available. Contrary to the spirit of the s170LK(4) the notice implied that the only avenue for union involvement was through a request made through the employer. The method or process stipulated in the employer's notice was therefore held to be neither adequate nor appropriate.

In the alternative, the employer referred Williams SDP, to the Full Bench decision in Re Alkane Exploration NL & Ors, Print 0936, [1997] 915 IRCommA (4 August 1997), and submitted that there was no reason to refuse certification of an agreement as long as the terms of the notice achieved substantial compliance. Despite being a member of the Full Bench in the Alkane case, Williams SDP rejected the employer's submission. The Senior Deputy President held that in light of the objects and language of the Act, substantial compliance with the requirements of s170LK(4) is insufficient. Williams SDP went a step further in holding that in this instance he was unable to conclude that there had even been substantial compliance with the provisions of s170LK(4). If anything, the notice was contrary to the spirit of s170LK(4).

It is for these reasons that the applications for certification were dismissed.

 

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