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

Application for approval of the Neighbourhood Houses and Adult Community Education Centres Collective Agreement 2024.

• [1] An application has been made for approval of an enterprise agreement known as the Neighbourhood Houses and Adult Community Education Centres Collective Agreement 2024. (the proposed Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Neighbourhood Houses Victoria Inc (NHV).
• [2] This is the third Statement I have issued in relation to the Application. Two previous Statements have been issued dealing with matters relating to the notification time for the proposed Agreement[1] and matters relating to representation during bargaining[2]. This Statement deals with several matters including matters relating to the employee vote about the proposed Agreement:
  1. Provisional views about representation during bargaining; and

1. Matters relating to the provision of information to employees about the vote on the proposed Agreement; and

1. Whether agreement of bargaining representatives has been obtained in accordance with s 180A of the Act; and

1. Whether the Commission should extend the time for the application for approval of the proposed Agreement to be made.

• [3] This Statement invites the parties to provide further information. This should occur no later than 4:00PM Wednesday 30 April 2025.

Type of Agreement and the effect of amendments made to the Fair Work Legislation (Secure Jobs Better Pay) Amendment Act 2022

• [4] In previous Statements I have noted that:
  1. It seems clear the proposed Agreement is a multi-enterprise agreement, within the meaning of s 172(3) of the Act, and a cooperative workplace agreement, within the meaning of s 12 of the Act.
  2. Several of the employers proposed to be covered by the proposed Agreement have identified a "notification time" prior to 6 June 2023. As a result, it appears that amendments to the Act by the Fair Work Legislation (Secure Jobs Better Pay) Amendment Act 2022 relating to matters including genuine agreement do not apply to those employers and I am required to apply the provisions of the Act as they existed prior to those amendments (the pre reform Act). Hereinafter I will refer to those employers who have identified a notification time prior to 6 June 2023 as "pre reform employers" and those who identified a notification time after that date "post reform employers".

Provisional view about representation during bargaining

• [5] A previous Statement (Statement 2) issued raised a range of issues about representation during bargaining. On 8 April 2025 further information was provided by NHV. On the basis of this information it appears as follows:
  1. In relation to employers proposed to be covered by the proposed Agreement who have identified a notification time prior to 6 June 2023, the apparent concern that some may have distributed their employees with a Notice of Employee Representational Rights (NERR) more than 14 days after the notification time appears to have been misplaced. Several employers provided information which was incorrect, which has now been rectified. It appears that none of the employers proposed to be covered by the proposed Agreement who have identified a notification time prior to 6 June 2023 distributed their employees with a NERR more than 14 days after the notification time.
  2. In relation to employers proposed to be covered by the proposed Agreement who have identified a notification time prior to 6 June 2023, the apparent concern that some may have distributed their employees with a NERR before the notification time appears to have been misplaced. Several employers provided information which was incorrect, which has now been rectified. It appears that none of the employers proposed to be covered by the proposed Agreement who have identified a notification time prior to 6 June 2023 distributed their employees with a NERR before the notification time.
  3. The concern identified in relation to Rye Community House Inc was based on incorrect information. The manner in which this employer provided its employees with information about their right to be represented by a bargaining representative - by providing them with a NERR - did not occur more than 14 days after notification time, but rather occurred simultaneously with the notification time.
  4. The concern relating to employers who appeared to identify a notification time after 6 June 2023, but appeared to provide their employees with information about their right to be represented by a bargaining representative (by providing them with a NERR) significantly before notification time appears to have been misplaced. Several employers provided information which was incorrect, which has now been rectified. The notification time for the employers identified was the same date as the provision to their employees of the NERR (which occurred before 6 June 2023).
• [6] Taking into account further information provided in relation to these matters, it is my provisional view that the concerns identified in Statement 2 do not prevent the Commission reaching a state of satisfaction that the agreement was genuinely agreed to by the employees of the employers concerned.

Any bargaining representative who wishes to make submissions in relation to this provisional view should do so by 4:00PM Wednesday 30 April 2025

Providing employees with information about the employee vote

• [7] The Act provides that a multi-enterprise agreement that is not a greenfields agreement is "made" as follows:

(a) a proposed enterprise agreement is a multi‑enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(c) those employees have voted on whether or not to approve the agreement; and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1)."

• [8] An employer that will be covered by a proposed enterprise agreement may request employees to approve an agreement by voting for it[3].
• [9] In circumstances where an employer is required to distribute to its employees a NERR, the vote must not happen until at least 21 days after the day on which the last NERR was issued to relevant employees[4].
• [10] To approve an agreement, the Commission must be satisfied that the relevant employees genuinely agreed to the agreement. This requires, among other things, that prior to the vote, employees should be provided with information about the agreement and information about the vote (see further below). The position now differs as regard to pre-reform and post-reform employers.

• [11] Under the pre-reform Act, an enterprise agreement has been genuinely agreed to by employees if, among other things, the Commission is satisfied that certain pre-approval steps were taken. These steps are required to be taken during or by the start of the "access period" for a proposed enterprise agreement. The "access period" is the 7 day period ending immediately before the start of the voting process[5].
• [12] The pre approval steps includes the requirement that employees be provided with the following information:
  1. The time and place at which the vote will occur; and

• [13] In other words, this information must be provided to employees at least 7 days before the vote.
• [14] As referred to in Statement 2, s 188(2) of the pre reform Act provides that the Commission may find an agreement to have been genuinely agreed to by employees despite a minor procedural or technical error. The failure to provide employees with the time, place and method of the vote may be an error of this kind. Statement 2 referred to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited (t/as RMAX Rigid Cellular Plastics) who said[6]:

6. What constitutes a 'minor' error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. Table 2 at [74] above examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

7. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a 'minor error'. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period (say 6 days before the start of the voting process) is likely to be a 'minor error' in most cases. But it will depend on the circumstances. If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a 'minor error'. Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a 'minor error' where there is a history of bargaining at the enterprise; the agreement is, in effect, a 'roll over' agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.

8. Whether an incidence of non-compliance is characterised as a 'minor error' also depends on the nature of the requirement which has not been complied with. For example, the need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the 'voting method' (s.180(3)(b)) - the first requirement may impact on the employees' capacity to participate in the voting process, the second may not.

• [15] What can be gleaned from these comments is that s 188(2) may operate to overcome an error in respect to the pre-approval requirements where the Commission can be satisfied the error did not impact adversely, or significantly adversely, on employees' capacity to participate in the voting process.
• [16] Each of the F17 Declarations provided to the Commission in support of the proposed Agreement asks, at Q21 "What steps did the employer take to notify the relevant employees by the start of the access period of: the time and place at which the vote was to occur; and the voting method to be used", and at Q22, "What steps were taken by the employer to ensure that the relevant employees either: were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement during the access period; or had access to a copy of the above materials throughout the access period?". The Declarations also ask the relevant employer to identify the date voting on the agreement commenced.
• [17] It is noted that the employers concerned with this agreement are small (in some cases very small) community organisations, and unlikely to have any particular industrial, legal or human resources expertise. The Declarations provided therefore vary in terms of the apparent quality of the information contained within them. In Schedule A, the product of the Commission's analysis of this information can be seen, as to what appeared to be the date of the commencement of the "access period" in respect of the employers listed. Schedule A is concerned with pre-reform employers.
• [18] Schedule A shows that, in respect to pre-reform employers, some employers do not appear to have provided employees with the time, date and method of the vote at least 7 days prior to the commencement of voting.

Further submissions from the parties are requested in relation to why the failure to provide employees with at least 7 days notice of the time, place and method of voting, did not significantly adversely affect their ability to participate in the voting process, and otherwise why the Commission should consider such employees genuinely approved the agreement, taking into account s 188(2) of the pre reform Act.

• [19] The amendments to the Act described in more detail in Statement 2 removed the legislative requirement that employees be provided with at least 7 days notice of the time, place and method of voting for a proposed enterprise agreement. However, items [15] - [16] of the Statement of Principles provides:

Providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote

15. Employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner. This should include:

(a) a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer, and

(b) a method and period of voting that provides all employees entitled to vote with a fair and reasonable opportunity to cast a vote.

16. Employees should be informed of the time, place and method for the vote:

(a) at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or

(b) by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.

• [20] Item [16(b)] of the Statement of Principles therefore appears to indicate that if an agreement is reached with one or more employee organisations acting as bargaining representatives for a significant proportion of the employees to be covered by the agreement, a different time period than 7 days might be adopted, provided it is reasonable in the circumstances.
• [21] Schedule B shows that, in respect to post-reform employers, some employers do not appear to have provided employees with the time, date and method of the vote at least 7 days prior to the commencement of voting.

Further submissions from the parties are requested in relation to why the failure to provide employees with at least 7 days notice of the time, place and method of voting, should not prevent the Commission from being satisfied the relevant employees genuinely approved the agreement, taking into account the circumstances.

If relevant, submissions may also be made about whether one or more employee organisations acting as bargaining representatives for a significant proportion of the employees to be covered by the agreement, agreed to adopt a period different than 7 days, that was reasonable in the circumstances.

Post reform employers - whether agreement of bargaining representatives has been obtained in accordance with s 180A of the Act

• [22] In respect to post-reform employers, s 180A of the Act now requires as follows:

180A Agreement of bargaining representatives that are employee organisations - proposed multi‑enterprise agreements

(1) This section applies to a proposed enterprise agreement that is a multi‑enterprise agreement.

(2) An employer must not request under subsection 181(1) that employees approve the enterprise agreement by voting for it unless:

(a) each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request; or

(b) a voting request order permits the employer to make the request.

Further submissions from the parties are requested in relation to the manner in which each bargaining representative for the enterprise agreement that is an employee organisation provided the employer with written agreement in relation to the request made to employees to be covered by the proposed Agreement that they approve it by voting for it.

Application made within 21 days of the agreement being made

• [23] Section 185 of the Act provides that if an enterprise agreement is made, a bargaining representative for the agreement must apply to the Commission for approval of the agreement. The application must be made within 14 days after the agreement is made, or if in all the circumstances the Commission considers it fair to extend that period - within such further period as the Commission allows[7].
• [24] In respect to when an agreement is "made", s 182(2) of the Act provides as follows:

(a) a proposed enterprise agreement is a multi‑enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement

have been asked to approve the agreement under subsection 181(1); and

(c) those employees have voted on whether or not to approve the agreement; and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

• [25] It appears the process used to ask employees who will be covered by the proposed agreement to approve it by voting for it did not lend itself easily to the application of s 182(2). Participating employers appear to have asked employees to vote for the agreement at different times. Thus it appears in respect of some employers, a majority of their employees voted to approve the agreement before other participating employers even commenced the process to ask their employees to do so.
• [26] It is therefore unclear precisely when (a) the employees of each of the employers proposed to be covered by the proposed Agreement asked their employees to approve it by voting for it (i.e., the date by which all of them had done so) and; (b) when, after that date, a majority of the employees of one of those employers voted to approve the agreement.
• [27] It might also be noted that the application filed seeking the Commission approve the agreement, which was made on 13 November 2024, was effectively incompetent, and while the Commission granted leave to NHV to file an amended application, this meant that a competent application for the approval of the proposed Agreement was not before the Commission until 7 February 2025.
• [28] Taking all of this into account, it appears highly likely that the application for the approval of the proposed Agreement was not made within 14 days after the agreement was made (within the meaning of s 182(2) of the Act), and, if the Commission is to consider the application, it must allow a further period for it to be made, because it is considered fair in all the circumstances.

Further submissions from the parties are requested in relation to why, in all the circumstances, it is fair that the Commission extend the period for the application for approval of the Agreement to be made.

Days between access period and vote commencement

Park Orchards Community House and Learning Centre Incorporated

Elwood St Kilda Neighbourhood Learning Centre Incorporated

Warracknabeal Neighbourhood House and Learning Centre Inc

Central Highlands Association of Neighbourhood Houses Inc

Days between access period and vote commencement

[1] PR785742

[2] PR785732

[3] Fair Work Act 2009 s 181

[4] Fair Work Act 2009 s 181(2); pre reform Act s 181(2)

[6] [2019] FWCFB 318 [117]

[7] Fair Work Act 2009 s 185(3)

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