Inattention has caught out an employer who had assumed a key employment term had been ‘rolled over’ from an expired agreement into the new agreement. And despite evidence that the old agreement contained the missing terms, the Fair Work Commission was unmoved.
The trouble started when the employer re-drafted the agreement from a PDF format to a Word format. This simple, routine task was bungled. During the transcription, an important element of the old agreement was missed. The employees were all engaged on a daily hire basis, but the few sentences that provided for this employment category were missed. Throughout the negotiation and consultation phases of the agreement-making process, no one picked it up.
When it came to the approval hearing, the employer explained this inadvertence to the FWC, submitted the evidence of the old agreement containing the missing provisions and offered undertakings to ‘rectify’ the problem.
But the FWC refused, citing the employer’s obligation to take all reasonable steps to explain the proposed agreement to the employees. Since the missing section was important in relation to how employees were actually engaged, it was no trivial issue. It followed, said the FWC, that if a fundamental term was not in the document on which the employees had voted, how could the FWC now add it in? That would be a substantial change, something the legislation does not permit.
The employer argued, in vain, that all the employees were engaged on daily hire, no other method was actually used and this had been the case previously. The employer further argued that if an undertaking was not acceptable, perhaps the FWC could use alternative powers to correct or amend an error. But that argument too was rejected.
The FWC acknowledged that the old agreement had the missing provision but was still not prepared to permit the undertakings offered. Just because the old agreement included this term did not mean it was ‘supposed’ to be in the new agreement. Further, if all the existing employees were daily hire employees and they voted on an agreement which did not cover that category of employee, then how could it apply to them? This was itself a major obstacle to approval.
There were just too many problems with the proposed agreement which stemmed from this carelessness. The FWC is not interested in what the existing conditions are. It is interested in whether or not the agreement is better than the award and that the pre-approval steps have been met. Arguing that ‘everybody knows what was meant’ just doesn’t cut it.