Application by Hawker Pacific Pty Ltd

[2016] FWC 416

[2016] FWC 416

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Hawker Pacific Pty Ltd
(AG2015/7011)
COMMISSIONER CAMBRIDGE	SYDNEY, 20 JANUARY 2016

Application for approval of the Hawker Pacific Pty Ltd, Maintenance Repair and Overhaul

Operations Enterprise Agreement 2015/2016.

[1]        An application has been made for approval of an enterprise agreement known as the

Hawker Pacific Pty Ltd, Maintenance Repair and Overhaul Operations Enterprise Agreement

2015/2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act

2009 (the Act). It has been made by Hawker Pacific Pty Ltd (the Employer). The Agreement

is a single-enterprise agreement.

[2]        The application was lodged at Sydney on 14 December 2015. The application

included a Statutory Declaration of Glenda Turner made on behalf of the Employer and

incorrectly dated 14 November 2015 (the Declaration). The Employer has confirmed that the

correct date of the Declaration was 14 December 2015. The Declaration stated that the

Agreement was made on 30 November 2015. Therefore the application was made within the

14 day lodgement time limit established by subsection 185 (3) of the Act.

[3]        Part 2-4 of the Act includes various procedural requirements that must be satisfied

before the Commission can approve of an enterprise agreement. One of these procedural

requirements is specified by s.174 of the Act which states as follows:

“174 Content and form of notice of employee representational rights

Application of this section

(1)	This section applies if an employer that will be covered by a proposed
enterprise agreement is required to give a notice under subsection 173(1) to an
employee.

Notice requirements

(1A)	The notice must:
(a) contain the content prescribed by the regulations; and
(b) not contain any other content; and

[2016] FWC 416

(c) be in the form prescribed by the regulations.

(1B) When prescribing the content of the notice for the purposes of

paragraph (1A)(a), the regulations must ensure that the notice complies with

this section.

Content of notice—employee may appoint a bargaining representative

(2)	The notice must specify that the employee may appoint a bargaining
representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3)	If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to

represent the industrial interests of the employee in relation to work that

will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining

representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in

operation

(4)	If a low-paid authorisation in relation to the agreement that specifies the
employer is in operation, the notice must explain the effect of
paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining
representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5)	The notice must explain the effect of paragraph 178(2)(a) (which deals with
giving a copy of an instrument of appointment of a bargaining representative to
an employee’s employer).”

[4]        As can be seen from subsection 174 (1A), a Notice of Representational Rights

(NERR) must, inter alia, contain the content prescribed by the Regulations, not contain any

other content, and be in the form prescribed by the Regulations.

[5]        In this instance the NERR contained content other than that prescribed by the

Regulations. The NERR also included a company logo and letterhead information and it

omitted certain other content prescribed by the Regulations.

[2016] FWC 416

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[6] A Full Bench of the Commission issued a Decision on 2 April 2014 (Peabody) which

dealt with inter alia, the operation of the provisions of s. 174 of the Act. Importantly this Full

Bench Decision included the following extracts:

“[33] The Panel characterised the decision in Galintel as supporting the proposition

that a Notice need only substantially comply with the requirements of s.174 and

Schedule 2.1. The recommendation was a repudiation of the proposition that

substantial compliance with the content and form of the Notice in Schedule 2.1 was

sufficient. The ‘mischief’ Parliament was seeking to address in responding to the

Panel’s recommendation and enacting subsection 174(1A) was the past practice of

making alterations to the content or form of the Notice.” [emphasis added]

[39] The language of s.174(1A), the context and legislative purpose all support the

proposition that a failure to comply with the provision goes to invalidity.”

[7]        Although the alterations made to the NERR in this instance may be considered to be of

little practical significance the requirement for strict compliance of the NERR is

unquestionable as the following further extracts from the Full Bench Decision in Peabody

confirms:

“[45] The consequence of failing to give a Notice which complies with the content and

form requirements of s.174(1A) is that the Commission cannot approve the enterprise

agreement. We note that this does not prevent the employer from recommencing the

bargaining process, completing the pre-approval steps (including the giving of valid

Notices) and making application to have the resultant enterprise agreement approved

by the Commission.

[46] In our view s.174(1A) is clear and unambiguous. There is simply no capacity to

depart from the form and content of the notice template provided in the Regulations. A

failure to comply with these provisions goes to invalidity. We agree with the Minister’s

submissions on this point, that is:

“A mandatory template is provided in the Regulations. The provisions make it

clear that there is not scope to modify either the content or the form of the

Notice other than as set out in the template.” [emphasis added]

[8]        Unfortunately, the NERR has departed from the form and content of the notice

template provided in the Regulations. The Commission does not have discretion to consider

any rectification of the departure from the form and content as prescribed for a NERR. The

NERR issued in this instance is therefore invalid.

[9]           Consequently, regrettably, the Commission cannot approve the Agreement and the

application is dismissed.

COMMISSIONER

[2016] FWC 416

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Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.