| FWC 6649|
|FAIR WORK COMMISSION|
Fair Work Act 2009
National Fleet Administrative Services Pty Ltd T/A Kings Transport &Logistics (Qld) P/L
DEPUTY PRESIDENT MASSON
MELBOURNE,12 DECEMBER 2017
Application for approval of the National Fleet Administrative Services P/L:QLD Company Drivers Enterprise Agreement 2017.
 An application has been made for approval of the National Fleet Administrative Services P/L:QLD Company Drivers Enterprise Agreement 2017(the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by National Fleet Administrative Services Pty Ltd T/A Kings Transport and Logistics (QLD) Pty Ltd (National Fleet). The Agreement is a single enterprise agreement.
 A notice of employee representational rights was provided to employees on 9 May 2016 1 and the notice complied with the regulations.2 Employees were provided with access to the Agreement and information about the effect of the terms of the Agreement on 28 June 2017.
 Employees were notified of the time,place and method of voting at a toolbox meeting on 11 July 2017 and voting occurred between 14 and 18 July 2017. A majority of those who voted approved the Agreement. 3
 National Fleet Administrative Services Pty Ltd T/A Kings Transport and Logistics (QLD) Pty Ltd filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test was the Road Transport Distribution Award 2010 4.
 The statutory declaration noted that the provisions in the Agreement were more beneficial than the Award or were not conferred by the Award. No less beneficial terms were identified.
 In reviewing the Agreement for approval the Commission identified that employees were notified of the details of the planned ballot for the Agreement on 11 July 2017 and that voting commenced three days later on 14 July 2017. Section 180(3) of the Act provides that employers must take all reasonable steps to notify employees of all relevant details of the ballot at least seven days prior to the commencement of the vote.
 The Commission advised National Fleet on 9 October 2017 that based on the documentation submitted it had formed a preliminary view that section 180(3) of the Act had not been met. Consequently,the Commission had also formed a preliminary view that it was unable to approve the Agreement. National Fleet was invited to make further submissions in relation to this issue.
 In response to the Commission’s request for additional submissions National Fleet wrote to the Commission on 20 November 2017 and provided additional documentation and submissions in support of their contention that they had complied with the notice requirements under section 180(3) of the Act.
 Having considered the further material submitted the Commission again wrote to National fleet advising that it was still not satisfied that National Fleet had taken all reasonable steps to provide employees with details of the time,place,location and method of voting at least seven days prior to the commencement of the vote in accordance with section 180(3) of the Act. The Commission restated its preliminary view that there appeared to be non-compliance with the Act and that consequently the Agreement could not be approved.
 National Fleet was invited by the Commission to consider withdrawing the application or alternatively they could request the Commission to list the matter for hearing. In correspondence to the Commission on 30 November 2017 National Fleet requested that the matter be listed for hearing so that they could be heard in relation to this issue.
 The application was subject to a Hearing by telephone on 12 December 2017 at which Mr Mark Lew and Ms Diane Eydlish appeared on behalf of National Fleet.
 In order for an Agreement to be approved by the Commission it must be satisfied that a number of statutory requirements are met. They are found in section 186,which relevantly provides,for the purpose of the present matter,as follows;
186 When the FWC must approve an enterprise agreement—general requirements
(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185,the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement;
 Section 188 of the Act deals with the requirements necessary to establish that employees have genuinely agreed to an enterprise agreement and provides;
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer,or each of the employers,covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2),(3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given);and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote);and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
 Section 180(3) of the Act deals with the notification requirements for the time,date,location and method of voting for an agreement:
180 Employee must be given a copy of the proposed enterprise agreement etc
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used
(4) The access period for a proposed enterprise agreement is the seven–day period ending immediately before the start of the voting process referred to in section 181(1).
 Having regard to the above it is necessary for the Commission to satisfy itself,amongst other statutory considerations when considering approval of the Agreement,that the Agreement has been genuinely agreed to by employees pursuant to section 186(2)(a). Employees will be found to have genuinely agreed to the Agreement if the requirements of section 188 are met. This relevantly includes consideration of,for the purposes of the present matter,section 180(3) requirements. Specifically,whether National Fleet has taken all reasonable steps to notify employees of the time,date,location and method of voting on the Agreement on or before the start of the “access period”.
 In its submission to the Commission,National Fleet referred to the timeline that it had adopted in communicating the details to its employees of the Agreement and the ballot to be conducted. National Fleet provided and referred to an internal memo dated 28 June 2017,which was circulated to employees covered by the Agreement. The memo detailed the changes that had been discussed in respect of the Agreement. A copy of the Agreement accompanied the memo. The memo then went on to describe the process for the conduct of a ballot as follows;
“What happens now?
You will have seven days to review the draft agreement. We will then undergo a ballot vote which will be scheduled for the week commencing 10 July 2017. Another memo will be issued by middle of next week to confirm the voting day and times for each site along with instructions on how voting will be conducted.”
 National Fleet also provided and referred to an internal memo sent to employees to be covered by the Agreement on 11 July 2017. That internal memo included specific details in relation to the time,date,location and method of voting as follows;
“You have all now received a copy of the draft agreement.
We will undergo a ballot vote scheduled for Friday,15 July 2017. A voting form has been attached to this memo. To cater for the different sites where we have employees the following arrangements have been made for you to vote:
- There will be a ballot box at Elgas Pinkenbar at 0530 on Friday,15 July 2017 (vote at toolbox meeting)
- There will be a ballot box at Kings Salisbury at 0900 on Friday,15 July 2017.
- There will be a ballot box at OneSteel at 0530 on Friday,15 July 2017.
Please submit your completed voting form into the ballot box before you finish your shift for the day by 1600 latest (only at Kings Salisbury)
If you are for any reason unable to submit your vote on Friday,15 July 2017,we will be allowing proxy voting to occur,where your vote is submitted prior to the date. Your vote must be submitted via the voting form attached in a sealed envelope and personally handed to the employee representatives or Kings Representatives listed below.
The votes will be counted by the Employee Representatives listed below and a Kings representative on Friday,15 July 2017,and results will be announced following the count. Pending a majority vote we will submit the Agreement to the Fair Work Commission (FWC) for approval. Once approval from the FWC is received then the Agreement will commence and the new pay rates will become effective.”
 In response to questioning from the Commission,National Fleet clarified the ballot date referenced in the internal memorandum dated 11 July 2017. The memo identified the date of the planned ballot as that of Friday,15 July 2017. That date was in error. The date that the ballot actually took place,consistent with the F17 statutory declaration submitted by National Fleet,was Friday,14 July 2017.
 In support of the application for approval of the Agreement National Fleet also provided a copy of a note from one of the employees who would be covered by the Agreement dated 20 November 2017. The correspondence stated as follows;
“To whom it may concern
I,Kerry Smith,wish to reiterate the following.
On 28 June 2017,all of the Queensland employees to be covered by the agreement were provided with a memo,indicating that we would be undergoing a ballot vote,which was to be scheduled for the week commencing 10 July 2017.
With this memo,it was my opinion that the notice gave a sufficient seven days’notice that the company was prepared to provide us with in order to vote on the document.
The date that we voted on the document,was seven days after the 28 June 2017 memo which we received.
 In the course of the hearing National Fleet made aural submissions to supplement the written submissions they had previously made in relation to their contended compliance with section 180(3). They submitted that the memo provided to employees on 28 June 2017 was intended to provide drivers with the greatest practicable notice to enable employees to review the document prior to the ballot. It was argued that National Fleet had taken all reasonable steps to provide employees with the details of the time,place,location and method of the vote at least seven days prior to the commencement of the vote.
 National Fleet further submitted that the operational nature of their employees’work was such that National Fleet endeavoured to provide those employees with as much notice as possible considering that there were a number of sites at which the employees to be covered by the Agreement were engaged at.
 I have considered the material provided by National Fleet and I accept that it was the intention to provide employees with as much notice as practicable in relation to the conduct of a ballot for the Agreement. Employees were advised in general terms on 28 June 2017 that the ballot would be conducted in the week commencing 10 July 2017. The internal memorandum of 28 June 2017 included copies of the Agreement and also identified the key features of the Agreement.
 The documentary material reveals however that specific notice to employees of the date,time,location and method of voting was not provided until 11 July 2017. Notwithstanding the general advice that was given to employees on 28 June 2017 it is evident that the specific notice requirements of section 180(3) were not met until the internal memo of 11 July 2017 was circulated to employees to be covered by the Agreement.
 The provisions in the Act in relation to requirements for notice of the time,date,location and method of voting on an agreement are clear. Reasonable steps must be taken to notify the relevant employees by the start of the access period. As the ballot was conducted on 14 July 2017 it would have been necessary for National Fleet to have confirmed the specific details of the time,date,location and method of voting on or by 6 July 2017 in order to satisfy notice requirements under section 180(3) of the act.
 While I accept that National Fleet were motivated by a desire to provide the maximum practicable notice to employees of the planned conduct of a ballot I am not satisfied that the general communication provided to employees on 28 June 2017 meets the requirements of section 180(3). Specifically,I am not satisfied that National Fleet have taken all reasonable steps to notify employees of the voting details at or prior to the commencement of the “access period.”
 Having not been satisfied that National Fleet have met the ballot notice requirements under section 180(3) of the Act I am consequently unable to approve the Agreement.
 The application for approval of the Agreement is dismissed. An order reflecting this decision will be separately issued.
1 Section 173 of the Act
2 Section 174 of the Act
3 Section 180 of the Act
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