Workpac Pty Ltd [2010] FWA 4247 (8 June 2010)

[2] Because I had some concerns about the application, the matter was the subject of a video-hearing on 7 June 2010. At that time I indicated that I would not approve the agreement for the following reasons.

[3] Section 173(1) provides as follows:

"173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(b) is employed at the notification time for the agreement."

[4] In the Form F17 - lodged by the applicant, it was said concerning the obligation in section 173 as follows:

"A SMS went to all staff who would be covered by the proposed agreement on Monday 15, March 2010. The message read "Message from WorkPac/In2Nursing. Please go to our website at http://www.workpac.com/nurseasea to view some important documents we ask you to read." The link directed the employees through to a site which housed the Bargaining Notice (Attachment 1), Explanatory Document (Attachment 2), the Nurses Modern Award and copy of the proposed Enterprise Agreement."

[5] Section 180(2) provides as follows:

"180 Employees must be given a copy of a proposed enterprise agreement etc.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials."

[6] In the Form F17, it was said concerning the objection under section 180(2)(a) as follows:

"A SMS went to all staff who would be covered by the proposed agreement on Monday 15, March 2010. The message read "Message from WorkPac/In2Nursing. Please go to our website at http://www.workpac.com/nurseasea to view some important documents we ask you to read." The link directed the employees through to a site which housed the Bargaining Notice (Attachment 1), Explanatory Document (Attachment 2), the Nurses Modern Award and copy of the proposed Enterprise Agreement."

[7] At the hearing I was told that all employees to be covered by the Agreement are commonly contactable via SMS facility.

Importantly, this is the means used to convey shift hours and work locations to employees.

[8] Further, at least 80% of employees have elected to have their pay details conveyed by e-mail.

[9] While the use of SMS seems to be an acceptable means of communication in the circumstances at hand, I do not accept that requiring employees to access a website is reasonable. This is because firstly, there is insufficient evidence that employees have ready access to computers or the website. Arrangement as to where pay details are forwarded is not relevant. Secondly, the SMS of 15 March 2010 made no reference to the fact that a proposed agreement was the subject matter.

[10] I note that only 10 employees voted out of 204 able to vote. Those 10 voted to approve the Agreement. While it is not determinant of the issue, it may corroborate my concerns as to the applicant's method of communicating with its employees.

[11] I find that the employer did not take reasonable steps to comply with its obligations under section 173(1) and 180(2).

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