Application by the Australian Health Practitioner Regulation Agency

[2015] FWC 599

[2015] FWC 599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Application by the Australian Health Practitioner Regulation Agency
(AG2014/10071)

COMMISSIONER WILSON MELBOURNE, 22 JANUARY 2015

Application for approval of the Australian Health Practitioner Regulation Agency Enterprise Agreement (ACT, NT, Vic, WA) 2014-2016; whether a consistent Notice of Employee Representational Rights; application refused.

[1] The Australian Health Practitioner Regulation Agency (AHPRA) made application to the Fair Work Commission on 27 November 2014 pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Australian Health Practitioner Regulation Agency Enterprise Agreement (ACT, NT, Vic, WA) 2014-2016 (the AHPRA Agreement).

[2] In support of the application, the AHPRA filed a signed agreement, together with material contained within the required Form F16, Application for Approval of Enterprise Agreement (the Form F16 Application), and the Form F17, the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17 Employer’s Declaration).

[3] Material filed by AHPRA at the time of the application indicates that the Community and Public Sector Union (CPSU) and the Australian Nursing and Midwifery Federation (ANMF) were bargaining representatives on behalf of their respective members, as were 7 employee bargaining representatives. The CPSU and the ANMF have each filed statutory declarations indicating their support for the approval of the agreement; that they agree with the material contained within the Form F17 employer’s declaration; and that they give notice that they wish to be covered by the AHPRA Agreement. 1

[4] The proposed agreement covers all employees of AHRPA in the Australian Capital Territory, the Northern Territory, Victoria and Western Australia. 2 The material filed with the application discloses that 483 employees would be covered by the agreement and that 298 of 324 employees casting a valid vote, voted in favour of the AHPRA Agreement.3

[5] In the Form F17 Employer’s Declaration, the AHPRA declares that they took all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement as required by s.173 of the Act. A copy of the notice was attached to the Form F17 Employer’s Declaration. The notice collectively consists of two documents, firstly one titled “internal memo” from John Ilott, the AHPRA Director, Finance and Corporate and secondly a document entitled “schedule 2.1 Notice of Employee Representational Rights”. Copies of these documents are attached to this decision.

[6] Consistent with the practice in my Chambers, after initial consideration by me of the application, preliminary findings (First Preliminary Findings) dated 18 December 2014 were forwarded to the AHPRA and bargaining representatives. Amongst other things the preliminary findings disclosed a concern that the Notice of Employee Representational Rights as provided to employees may not be consistent with the obligations in s.173. In this regard, the preliminary findings disclosed that;

“A reading of the Notice circulated to employees on 30 January 2014 shows that additional wording has been included at paragraph four regarding the two points that provide guidance on how one can appoint a person as a bargaining representative. Additional wording has also been included in the final paragraph of the Notice with respect to contact details for questions relating to the document.”

[7] Following provision of the First Preliminary Findings, the AHPRA and bargaining representatives were provided with an opportunity to express their views about the preliminary findings. The AHPRA responded to these preliminary findings on 19 December 2014 by indicating;

“The representational rights notification to which you refer has been used in the current form by AHPRA leading to the approval of all of our past 4 agreements all of which have been approved in the past 2 years.

It is our contention that the additional information was to assist our employees in receiving as much information as possible regarding the bargaining process.

We respectively submit that the additional material provided with the Notice does not have the character of being misleading or intimidatory and the agreement was “genuinely agreed” by employees for the purposes of s .188 of the Act.

A further indication that the process was genuine, open, not misleading or intimidatory is the fact that the number of non union employee bargaining representatives was significant and some nominated after the bargaining process commenced.

Further minutes of all meetings were posted on the AHPRA intranet and general meetings of staff were held in each workplace in conjunction with the bargaining representatives. Bargaining representatives were given unlimited access to their constituents at any time during the bargaining process.

With this in mind we would submit that there is no breach of the Fair Work Act by intent or omission and the agreement should be approved without further submissions being required.”

[8] In addition;

• the CPSU advised on 9 January 2015 in relation to the question of the Notice of Employee Representational Rights, that “the CPSU agrees with AHPRA and other bargaining representatives that the notice of representational rights was not misleading or intimidatory and did not adversely effect the rights of its members in relation to bargaining”; and



• an individual bargaining representative submitted in an email forwarded to me on 5 January 2015, that she had “read the submission regarding the representational rights matter and also agree that the notice was not misleading or intimidatory and that the agreement was genuinely agreed and should be approved”.

[9] Notwithstanding these submissions, I continued to hold a concern that there has been a circulation to employees of a non-compliant Notice of Employee Representational Rights and that such a situation is sufficient to cause me to refuse approval of the AHPRA agreement. Second Preliminary Findings addressing these concerns dated 13 January 2015 were forwarded to the applicant and the bargaining representatives.

[10] In the manner invited in the Second Preliminary findings, AHPRA gave notice that it wished to be heard on the matters raised by me, and a hearing of the matter was convened for 22 January 2015. The CPSU also attended the hearing and presented submissions.

[11] Mr Trindade, solicitor, sought and was granted permission by me to appear as a lawyer representing AHPRA pursuant to the provisions of s.596(2) of the Act, for the reason I was persuaded that the issues attending to the matter have some complexity and that representation of AHPRA by a lawyer may enable the matter to be dealt with more efficiently. In addition Mr Wright appeared for the CPSU.

[12] In forming my decision I have given consideration not only to the application and material filed by the Applicant, AHPRA, but also to the material filed by the CPSU and the ANMF at the time that they sought to be covered by the AHPRA agreement. I have also had regard to the responses made by all concerned following the two sets of Preliminary Findings and the submissions made in the hearing on 22 January 2015.

[13] As previously referred to, the covering Internal Memo and the Notice of Employee Representational Rights were issued to all staff by the AHPRA on 31 January 2014. The Internal Memo contains only factual information, other than an expression by AHPRA that;

“[i]t is our intention to combine these two agreements into a single new agreement to commence on 1 July 2014”.

[14] In relation to the accompanying Internal Memo and its content, I note that it is a question of fact to be determined by the Commission as to what is the Notice when additional material to the prescribed form is circulated at the same time as a notice, and that there is nothing that prevents an employer from providing additional material. 4 Consistent with this, I find that the material for consideration by me for compliance with the prescribed notice is the single page headed “Notice of Employee Representational Rights” circulated to employees on 30 January 2014.

[15] I find that the Notice as issued to employees contains certain material which departs from that which is prescribed by Schedule 2.1 of the Fair Work Regulations 2009.

[16] In particular, the content included in the Notice as issued under the heading “If you are an employee who would be covered by the proposed agreement:” has caused me to find the Notice to be inconsistent with the prescribed Notice. The relevant passage reads as follows;

“If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative.

• In either case you must send a copy of the appointment to AHPRA by emailing to [email protected]:au. We request that you provide this appointment notice with your full name and preferred contact details.

• Your early advice will assist us in coordinating the bargaining process, as we anticipate commencing discussions in March 2014.

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.” (added emphasis)

[17] The parts of the above shown in underlined italics are a departure from the prescribed Notice which is established through the combination of s.174 of the Act and Schedule 2.1 of the Fair Work Regulations 2009. The relevant passage in the prescribed Notice reads as follows (again noting that the departing words are shown in underlined italics);

“You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”

[18] In my view, the text highlighted above departs from that prescribed in three respects as follows;

• Firstly, and perhaps least significantly, the Notice as sent requires recipients to provide their notice of appointment of a bargaining representative to AHPRA by email (when the prescribed Notice requires merely that it is given by the recipient to their employer);



• Secondly, it is requested that a person providing a notice of appointment of a bargaining representative to AHPRA provide their full name and preferred contact details, when the prescribed Notice makes no explicit provision for this;



• Thirdly, and most significantly, the Notice as issued requests the early advice of an appointment of bargaining representatives, when no such request is contained within the prescribed Notice or, indeed, within the Act. I note that in this regard, there are no limitations within s.176 about the time at which a person may be appointed as a bargaining representative of an employee.

[19] The Full Bench in Peabody Moorvale Pty Ltd v CFMEU 5 (“Peabody”) considered in detail the matter of consistency of an issued Notice of Employee Representational Rights with that which is prescribed and the implications for approval of an agreement of departure from the prescribed Notice.

[20] The Full Bench made it abundantly clear there are not to be changes to the Notice which is distributed by an employer for the purposes of s.174;

“[18] Subsection 174(1A) uses language in mandatory form and goes to some length to make it clear that there can be no departure from the content or form of the Notice prescribed in the Regulations. As mentioned earlier, s.174(1A) provides that a Notice must contain the prescribed content, must not contain any other content and must be in the form prescribed.

[19] The clear and unambiguous meaning of the words of s.174(1A) is entirely consistent with the context and mischief to which the provision is addressed.”

[21] The Full Bench further stated the importance of compliance with that which is prescribed, without any alteration at all, innocuous or not, when it said;

“[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.”

[47] Taking into account the considerations identified in Project Blue Sky we have concluded that the legislative purpose of s.174(1A) is to invalidate any Notice which modifies either the content or form of the Notice template provided in Schedule 2.1 of the Regulations. ...” 6 (references omitted)

[22] I respectfully follow the finding of the Full Bench that I must treat as invalid “any Notice which modifies either the content or form of the Notice template provided in Schedule 2.1 of the Regulations.” Within its decision, the Full Bench gives no scope and makes no allowance for the exercise of a discretion that would find that certain changes of a minor nature can be overlooked and a finding made nonetheless that an employer that will be covered by a proposed enterprise agreement has taken all reasonable steps to give a consistent notice to employees, or in the alternative, there will be a contrary finding only where the changes are of a major nature, or a nature qualitatively adverse to the interests of employees.

[23] Because I have found that the Notice of Employee Representational Rights as issued by AHPRA is not consistent with the prescribed form, I must refuse approval of the AHPRA Agreement, which I now do. An Order to that effect will be issued in due course.

[24] AHPRA submitted that should I refuse approval, that I should take certain steps to encourage a timely process of renegotiation, submission and approval of a replacement agreement. I consider such submission to have merit and will therefore undertake the following steps;

• Issue with this decision a short statement to employees explaining why the Commission has refused approval. Such Statement is attached to this decision;



• I will formally recommend to AHPRA, its employees, the unions and the employee bargaining representatives, that they use their best endeavours to reach a replacement agreement, consistent with the original document, as quickly as they are able. Such recommendation is contained within the Statement referred to above.



• Should any person wish to raise directly a question or concern with the Commission about the process of bargaining for a replacement agreement, I am prepared to discuss that with them (which, depending on the issue raised, may require the convening of a conference of the parties);



• Work with the parties to allow a quick consideration process for a resubmitted agreement. To that extent, I will request that a resubmitted agreement is allocated by the Commission staff to my Chambers. On the assumption that a resubmitted agreement is capable of approval and is otherwise consistent with the agreement submitted for approval in November 2014, I will undertake to complete my consideration of the resubmitted document within 7 days of it being allocated to my Chambers. It will assist this endeavour if AHPRA ensure that, shortly prior to its formal submission of a replacement agreement that it forward a copy of all relevant material directly to my Chambers, at [email protected].

COMMISSIONER

Appearances:

Mr T Wright on behalf of the Community and Public Sector Union

Mr D Trindade (solicitor) and Mr L Butler on behalf of Australian Health Practitioner Regulation Agency

Hearing details:

2015.

Melbourne:

January, 22.

 1   CPSU filed 1 December 2014; ANMF filed 19 December 2014

 2   AHPRA Agreement, cl.2.3

 3   Form F17, Employer’s Declaration, para 2.9

 4   Peabody Moorvale Pty Ltd v CFMEU[2014] FWCFB 2042 at [67]

 5   [2014] FWCFB 2042

 6   Ibid, at [45] - [47]

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