Australian Vintage Limited

[2015] FWC 3619

[2015] FWC 3619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Vintage Limited
(AG2015/800)

COMMISSIONER LEWIN MELBOURNE, 28 MAY 2015

Application for approval of the Australian Vintage Limited (ABN:78 052 179 932) Merbein Packaging Winery, Warehouse and Clerical Enterprise Agreement 2014 - Notice of Employee Representational Rights - Notice deficient - Unlawful additional content - Application dismissed.

[1] On 8 April 2015, an application for approval of the Australian Vintage Limited (ABN:78 052 179 932) Merbein Packaging Winery, Warehouse and Clerical Enterprise Agreement 2014 (Agreement) was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act) by Australian Vintage Limited (the Applicant). The Australian Workers’ Union (AWU) was a union bargaining representative, who supported approval of the Agreement and who gave notice pursuant to s.183 of the Act that it sought to be covered by the Agreement.

[2] Attached to the application for approval of the Agreement was the Notice of Employee Representational Rights (the Notice). The Notice was provided to the employees to be covered by the proposed Agreement, as required by s.173 of the Act. Section 174 of the Act prescribes the required content and form of the Notice:

“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

(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).”

[3] Schedule 2.1 of the Fair Work Regulations 2009 (Cth) (the Regulations) sets out the required content and form of the Notice as follows:

“Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise
agreement ([name of the proposed enterprise agreement]) which is proposed to cover
employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

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 Commission 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 give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies—include:]

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.

[If a low-paid authorisation applies to the agreement—include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation 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, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument—include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

● the nominal expiry date of your existing agreement has passed; or

● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].”

[4] The Notice contained in the application for approval of the Agreement contained additional text attached under the heading “If you are an employee who would be covered by the proposed agreement”. The additional text was underlined. The additional text stated as follows:

“Please advise the Returning Officer - Evelyn Newcombe if you wish to nominate yourself or someone else or revoke the union as a bargaining representative and they will provide you with the appropriate form to complete.”

[5] The Full Bench of the Fair Work Commission held in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union[2014] FWCFB 2042 (Peabody) that:

“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.

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.”  1

[6] The decision and reasoning in Peabody was recently upheld and applied by the Full Bench in The Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd; The Maritime Union of Australia; The Australian Institute of Marine and Power Engineers[2015] FWCFB 3337.

[7] On 19 May 2015, the Commission advised the Applicant of its concerns in relation to the additional text inserted into the Notice. The Commission identified the Full Bench’s decision and reasoning in Peabody and invited the Applicant and the AWU to file and serve any submissions in relation to the Commission’s concerns with the content and form of the Notice by 4:00pm (AEST) Tuesday, 26 May 2015.

[8] On 21 May 2015, the Applicant advised the Commission that they would not be making any submissions in relation to the Commission’s concerns with the content and the form of the Notice. No submissions were received from the AWU.

[9] The content and form of the Notice fails to comply with the requirements prescribed by s.174(1A) of the Act and Schedule 2.1 of the Regulations. As a consequence the application for approval of the Agreement is invalid. Therefore, the application for approval of the Agreement is dismissed.

COMMISSIONER

 1   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union[2014] FWCFB 2042, [45]-[46]

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