An appeal to a full bench of the Fair Work Commission, an enterprise agreement has been declared invalid because of procedural missteps in the lead-up to voting, rather than any intrinsic shortcoming of the terms and conditions of employment it prescribed.
And, the union which ran interference, had not raised the deficiencies it relied on in the appeal, in the original case.
The proposed agreement covered a group of businesses engaged in a common enterprise and the coordinator for the group had distributed all the necessary materials and instructions about the procedural requirements. However, each of the individual businesses themselves (the actual employers) are very small businesses, the largest having four employees, so the information flow at the workplace was informal. Details of when, where and how certain steps were taken, were not recorded in forensic detail.
One of the procedural requirements is for an employer to advise the employees of the time, place and method of voting. This must be done in a certain timeframe. The only available evidence about this aspect was from the co-ordinator, who swore an affidavit indicating that the advice was distributed well in advance. On any reading of the material, it is most likely the employers did take reasonable steps to inform staff of the ballot and the relevant details (they all voted). Certainly the Commissioner hearing the original case was satisfied on the material that there was no concern.
Nevertheless, on appeal, the FWC found that there was no evidence available from the actual employers that the necessary steps had been taken. This meant the agreement had not been made.
The case was complicated by a second string to the union’s appeal (the true reason for it in fact, as the procedural missteps were not raised at the original hearing). But the appeal failed in that area, so the union was able to destroy the agreement reached by the employers and their staff in these small businesses on a trifling technicality.
This case is further reminder, if needed, of the folly of taking a pragmatic approach to procedural steps in agreement-making. Until the legislation is changed to afford the FWC the capacity to apply common sense to these situations, and not the black letter law approach they’re obliged to adopt now, employers and bargaining agents have no choice but to adhere strictly to process, and then check and double check everything.