Application by Volvo Group Australia Pty Ltd

[2011] FWA 4050

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Application by Volvo Group Australia Pty Ltd
(AG2011/9560)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 21 JULY 2011

Application for approval of the Volvo Group Australia Retail Enterprise Agreement 2011 - application refused.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 20 May 2011 by Volvo Group Australia Pty Ltd for the approval of a single-enterprise agreement known as the Volvo Group Australia Retail Enterprise Agreement 2011 (“the Agreement”).

[2] The question at paragraph 2.1(a) of the Form F17 initiating this application reads, “Was a notice of representational rights complying with s.174 given to each employee who will be covered by the agreement in accordance with s.173?” The Applicant answered “No” to this question, and further stated that representational rights were discussed at a meeting of the negotiating committee.

[3] Section 173 of the Act requires that an employer must take reasonable steps to give notice of the right to be represented by a bargaining representative to each employee. Section 173 of the Act relevantly reads 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:

(a) will be covered by the agreement; and

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

[4] Section 174 of the Act is set out relevantly below, and it indicates the content of the notice of representational rights:

174 Content 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.

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 FWA 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—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).

[5] Section 176 of…