AG2015/2569, Transcript of Proceedings [2015] FWCTrans 365 (16 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051957

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DEPUTY PRESIDENT GOSTENCNIK

AG2015/2569

s.185 - Application for approval of a single-enterprise agreement

Application by Hale School
(AG2015/2569)

Melbourne

4.07 PM, THURSDAY, 28 MAY 2015

PN1

THE DEPUTY PRESIDENT: Yes, good afternoon. Mr Timmins, you re there for the applicant employer?

PN2

MR TIMMINS: That s correct.

PN3

THE DEPUTY PRESIDENT: And Mr Dane, you re representing United Voice. United Voice being a bargaining representative. Is that correct?

PN4

MR DANE: That s so.

PN5

THE DEPUTY PRESIDENT: And Ms Bryant for the Independent Education Union on the same basis?

PN6

MS BRYANT: Yes, Deputy President.

PN7

THE DEPUTY PRESIDENT: Yes. And, Mr Briggs, you re there with Ms Bryant, is that right?

PN8

MR BRIGGS: That s correct.

PN9

THE DEPUTY PRESIDENT: Yes, all right. The purpose of my listing this matter, this afternoon, is firstly to discuss some issues that I think remain outstanding following correspondence between the school and officers of the Commission but also to set down a timetable if the Independent Education Union still presses its objections set out in its statutory declaration and I will come to those if that becomes necessary.

PN10

But I will, if I may, deal with the matters that I have concerns about for present purposes. Mr Timmins, as I understand the chain of events leading to the vote for the agreement they were as follows. That sometime in I ll start again. The employer agreed to or initiated bargaining on 17 September 2014. That s so, isn t it?

PN11

MR TIMMINS: That s correct.

PN12

THE DEPUTY PRESIDENT: Yes. And the employer then at that time also sent out a notice of employee representational rights?

PN13

MR TIMMINS: That s correct.

PN14

THE DEPUTY PRESIDENT: And at a later time, being 9 February it sent out a further notice of employee representational rights on the basis that there were some employees who may not have received it on the first occasion and/or they were new to the school.

PN15

MR TIMMINS: That s correct.

PN16

THE DEPUTY PRESIDENT: Okay. And both the notices or the purported notices of employee representational rights did not comply with the requirements of the Act in that they contained additional content. Do you accept that?

PN17

MR TIMMINS: That s correct.

PN18

THE DEPUTY PRESIDENT: Okay.

PN19

MR TIMMINS: Yes, I accept that.

PN20

THE DEPUTY PRESIDENT: And as a consequence of that further notice of employee representational rights was issued on or about the 12 February 2015.

PN21

MR TIMMINS: That s correct.

PN22

THE DEPUTY PRESIDENT: Yes. And that is the notice of employee representation rights as annexed to your further statutory declaration which was executed on 14 May. Yes?

PN23

MR TIMMINS: That s so, deputy President. Yes.

PN24

THE DEPUTY PRESIDENT: All right. Well, let me deal with that issue firstly. Section 173(3) of the Act requires that the employer must give a notice as soon as practicable and no later than 14 days after the notification time of the agreement. Notification time is set out in subsection 2, and relevantly for present purposes it s the date on which the employer agrees to bargain.

PN25

As we have already discussed that date was 17 September 2014. So as soon as practicable, thereafter, but certainly no later than 14 days after that date the Hale School was required to issue an employee ballot a notice of employee of representational rights. On the material that you filed that didn t occur until sometime later which was the 12 February 2015.

PN26

Now, I should alert you to a decision of Vice President Hatcher in TWU v Hunter Operations Pty Ltd, which is to be found at 2014, FWC 7469, in which the Vice President held that those provisions were mandatory, that is the requirement to give a valid notice within 14 days after the notification period and anything done after that point was invalid.

PN27

Now, if the Hale School presses its application it will need to persuade me that either it complied with the section or, alternatively, that the Vice President was wrong. And I will give you an opportunity to do that if that s what you wish to do. But as things presently stand it seems to me that there isn t a valid notice of employee representational rights which means that everything else that followed is also invalid which means that I can t approve the agreement.

PN28

That s the first of a number of issues. I will go through all of them. And I am not going to, in fairness, Mr Timmins seek your response today. I will give you an opportunity to consider your position and I will discuss with you what else might be done. The second issue relates to the date on which the voting commenced. And this might well be simply a typographical error but the statutory declaration that was filed in support of the approval for the agreement, in answer to question 2.8 which requires the specification of particular dates sets out that the date of voting for the agreement commenced, that is, voting commenced on the first date when the employee was able to cast a vote. The date there indicated is the 27 March 2015, and thereafter, it has indicated that the agreement was made on the 24 April 2015.

PN29

Now, Mr Timmins, do I take it that to mean that the ballot was open for a month?

PN30

MR TIMMINS: That s correct.

PN31

THE DEPUTY PRESIDENT: Okay. Well, that is also problematic in this sense. You will see in the not the fact that you had the ballot open for a month but you will see that in answer to question 2.4 which requires the employer to set out the steps that were taken and dates on which those steps were taken to give the employees a copy of the agreement et cetera, it s indicated that on 27 March a letter was sent to employees, that is the non-teaching staff, which attached a copy of the proposed agreement.

PN32

Now, it s not clear to me whether the employees have a copy of the proposed agreement in the final form before that date, but if they did not, then that date was too late. The Statute requires that section 180(2) requires that the employer take reasonable steps during the access period to ensure that employees are either given a copy of the final text of the agreement and materials incorporated or to ensure that throughout their access period the employees had ready access to the agreement.

PN33

Now the access period is the seven days which ends immediately before the voting process commences. According to your statutory declaration the voting process commenced, that is, the date on which the employees were first able to cast a vote was the 27 March. Therefore the access period finished on 26 March at midnight. The consequence of that is that the employees did not have a copy of the agreement given to them during the access period. They were given a copy after the access period, nor on the face of the material did employees have ready access to a copy of the agreement throughout the access period.

PN34

So, on either leg it seems that section 180(2) hasn t been complied with. The consequence of that is that I can t be satisfied that employees have genuinely agreed to the agreement because section 188 will tell me that in order for me to be satisfied that the employees genuinely agree to the agreement I must be satisfied relevantly that subsection 180(2) has been complied with. On the face of the material that s been thus far filed, it seems that it hasn t been complied with and so I can t be satisfied.

PN35

The satisfaction that employees genuinely agree to the agreement is that one of the pre-conditions that which I must be satisfied before I can approve the agreement. So that s the second issue.

PN36

The third issue is a related issue and that s satisfaction of the requirements of section 180(3). What that section requires is that the employer take all reasonable steps to identify employees of the time and place at which the vote will occur and the method of voting and that s to occur by the start of the access period. And you recall the access period is a seven-day period ending immediately before the voting starts which means that by the start of that period, that is by the 20 March 2015 employees needed to be notified of the date and place of voting and the method to be used.

PN37

Now, according to the statutory declaration which was filed there seems to be some correspondence which was sent to employees which was said to give that information but that seems to have been sent on 27 March which, again, is after the access period had concluded not by the start of the access period. And in separate correspondence to one of the members of the members support team from the school dated 14 May 2015, paragraph numbered three of that correspondence indicates that in relation to question 2.5, employees were handed an information sheet and ballot papers on 27 March. And some employees received it sometime after that.

PN38

Now, all of that leaves, it seems to me, inescapably to the conclusion that the employees were notified of the date and place of voting and the method of voting at the conclusion of or after the conclusion of the access period. Consequently, I can t be satisfied that section 180(3) has been satisfied and like with at the earlier point section 188 makes clear that I need to be satisfied that that subsection has been complied with, in order to be satisfied that employees genuinely agree to the agreement.

PN39

So aside from the Independent Education Union issues, there seems to me to be some fundamental pre-approval step requirement issues which, on the face of the material that are presently before me I can t be satisfied have been complied with. So, as I indicated, Mr Timmins, I am not going to ask you, at this stage, although feel free if you wish to respond to respond but I m going to give you an opportunity to consider the school s position and if you wish to make submissions on any of those matters and persuade me that with additional information that those pre-approval requirements have been satisfied, then I am open to receiving that information. But as things presently stand, I m not satisfied that the pre-approval requirements have been met and I am not in a position to approve the agreement.

PN40

So option one is for me to set down a timetable to enable you to file further material and any submissions that you wish to make. Option two is that you can discontinue the proceeding and start again. Option three is for me to simply determine the matter today on the basis of the material that I have and dismiss the application.

PN41

Now, if the school is minded to opt for either option two or option three, then you will need to agree to bargain or initiate bargaining again, within 14 days of that date. You will need to provide a notice of employee representational rights to employees and then you will need to comply with the other pre-approval steps which on the face of the material presently haven t been complied with. And you can then seek approval from the employees by vote of the very same agreement which I am not presently in a position to approve. So, Mr Timmins, in large measure I am in your hands.

PN42

MR TIMMINS: Thank you, Mr Deputy President. I acknowledge points 2 and 3 that the agreement and the voting slips were sent on the same email at the same time. So as far as the access to be given to my client (indistinct) dealt with and on the first day the reason that the second notice was sent out was because there was no representation made by any of the parties to the school. And so it was decided on legal advice to be sent out purveying the notice.

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR TIMMINS: And because there was the change had been six months since the first notice had been sent out.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR TIMMINS: And just to (indistinct).

PN47

THE DEPUTY PRESIDENT: Mr Timmins, I m not being critical of you trying to send out a further notice. The difficulty is that both the first and second notices were themselves invalid and so you didn t actually send out a valid notice until sometime after 9 February.

PN48

MR TIMMINS: Yes, 12 February.

PN49

THE DEPUTY PRESIDENT: 12 February. So that was the first valid notice that you sent which was outside of the time prescribed. But in any event if you accept - - -

PN50

MR TIMMINS: Yes.

PN51

THE DEPUTY PRESIDENT: If you accept the other matters then the issue of the notice of representational rights is moot because I m not in a position to approve the agreement.

PN52

MR TIMMINS: I accept that.

PN53

THE DEPUTY PRESIDENT: Yes.

PN54

MR TIMMINS: We want to move forward for the benefit of the staff.

PN55

THE DEPUTY PRESIDENT: Yes. And I am happy to assist in any way that I can and perhaps the simplest and quickest way, Mr Timmins, for me to assist that is to simply dismiss the application today which will effectively mean that you can today agree to initiate bargaining or commence bargaining anew and issue a fresh notice of employee representational rights in the same terms as the one that was issued on 12 February and then move on from there and just be mindful of the pre-approval requirements in relation to the date, place and method of voting.

PN56

You could, also, for example in addition to the sending out of notice of representational rights in a separate document, indicate that there will be a vote. You will be asking employees to approve the agreement 22 days after the date of the notice of employee representational rights, for example, and that the voting will be by secret ballot and it will take place at the school or electronically.

PN57

So you could take care of that aspect of the pre-approval requirement today. You could also you will need to ensure that employees have ready access to the agreement. Now, given that you have already sent a copy of the agreement to each of the employees, then you will be able to say later on, subject to the agreement not changing, you will be able to say that the employees had ready access to the agreement throughout the next access period because you gave them a copy of the document effectively some weeks ago.

PN58

But to cover all bases, I would make it available again and then the only thing that you need to worry about then is the issues that the Independent Education Union have raised about the nature of bargaining and that s a matter for you to discuss with that union. But so far as the pre-approval steps can be concerned, if I dismiss the application today, subject to the attitude of the other unions in terms of any further negotiations there s no reason, in principle, why you couldn t be in a position to make another application within the month to approve the agreement, provided you take the pre-approval step requirements as I have indicated.

PN59

MR TIMMINS: That would be, Deputy President, the third option.

PN60

THE DEPUTY PRESIDENT: Yes, can I also indicate for your benefit and for the benefit of the other parties that there are no other issues with the agreement which would cause me concern not to approve it. So there are no better off overall test issues. There are no issues in relation to the way in which the agreement relates to the National Employment Standards. The consultation term doesn t deal with consultation about changes to regular rosters or ordinary hours but that s not fatal because I would simply or the legislation would simply deem the model consultation term to be a term of the agreement.

PN61

So, in all other respects, as things presently stand I don t have any particular concerns about those issues. The Independent Education Union is raising issues about whether the good faith bargaining requirements were met during the period before the agreement was approved. I don t need to concern myself with those things now because for other reasons I won t approve the agreement. But you have got an opportunity to sit down with the Independent Education Union and rectify any concerns that you might otherwise have or that it might otherwise have. All right?

PN62

MR TIMMINS: Yes.

PN63

THE DEPUTY PRESIDENT: Now, Mr Dane do you want to say anything?

PN64

MR DANE: No, your Honour. There are no submissions for us to make.

PN65

THE DEPUTY PRESIDENT: Ms Bryant?

PN66

MS BRYANT: Mr Briggs is here to - - -

PN67

THE DEPUTY PRESIDENT: I m sorry. Yes, Mr Briggs?

PN68

MS BRYANT: (Indistinct)

PN69

MR BRIGGS: Look, I ve got no further comments, Deputy President. (Indistinct) in terms of the proceedings from today.

PN70

THE DEPUTY PRESIDENT: All right. Well, on that basis, I am not satisfied that the pre-approval requirements set out in section 180(2) and section 180(3) have been met. Consequently, I am not satisfied that the employees genuinely agreed to the agreement and so I am not in a position to approve the agreement. The application by Hale School for the approval of the Hale School Non-teaching Enterprise Bargaining Agreement 2015 is dismissed. Thank you all for your attendance. We are adjourned on that basis.

PN71

Now, sorry, Mr Timmins, I will say this. That on the assumption that the agreement doesn t change and you are able to rectify any other concerns that the other bargaining representatives might have, if the agreement is again approved by a ballot of employees and you make another application then when you file the application if you note that I have dealt with a related matter and ask for the matter to be referred to me I will ensure that it s expedited.

PN72

MR TIMMINS: Thank you very much, Deputy President.

PN73

THE DEPUTY PRESIDENT: All right. Thank you all for your attendance. We re adjourned.

ADJOURNED INDEFINITELY [4.33 PM]