“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2012] FWA 3975

[2012] FWA 3975

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(AG2012/1453)

COMMISSIONER GOOLEY MELBOURNE, 9 MAY 2012

RMB Metalwork Pty Ltd AMWU Metal Engineering On-Site Construction Agreement 2011-2014.

[1] The Australian Manufacturing Workers Union (the AMWU) lodged an application for approval of the RMB Metalwork Pty Ltd AMWU Metal Engineering On-Site Construction Agreement 2011-2014 (the Agreement) on 2 May 2012.

[2] The notice of employee representational rights issued to employees was in the following terms:

“RMB Metalwork Pty ltd gives notice that it is bargaining in relation to an enterprise agreement RMB Metalwork Pty Ltd AMWU Metal Engineering On-Site Construction Agreement 2011-2014 which is proposed to cover employees who are persons engaged in or in connection with the metal, engineering and associated industries as defined in the National Metal Engineering On Site Construction Award 2002 as it stood on 1 March 2006.

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 Australia.

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

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.

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 Australia Help Line on 1300 799 675.”

[3] The notice omitted the following:

“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 give a copy of the appointment to your employer.  1“

[4] On 3 May 2012 I wrote to the AMWU and RMB Metalwork Pty Ltd (the employer) advising that the notice of representational rights did not comply with the Fair Work Act 2009 (the FW Act) in that it did not advise persons who were not members of a union of their right to appoint a bargaining representative. I advised the parties that the application would be listed for hearing but they could provide submissions prior to the hearing which may have negated the need for a hearing.

[5] The application was listed for hearing on 8 May 2012 and no submissions were received prior to the hearing. No party attended the hearing and my associate contacted the parties and was advised by the AMWU and the employer that they had received the notice of hearing. Consequently, I have decided to determine the matter on the papers.

[6] Section 174 of the FW Act provides as follows:

“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—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).

Regulations may prescribe additional content and form requirements etc.

(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.”

[7] Section 186 of the FW Act relevantly provides as follows:

“186 When FWA must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) FWA must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).”

[8] Section 188 of the FW Act provides as follows:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[9] In Galintel Rollings Mill Pty Ltd t/a the Graham Group the Full Bench determined that the requirement in section 181(2) “cannot be satisfied if a notice referred to in s173 is not given.” 2 Further the Full Bench held that “if an employer fails to advise employees of their rights in the manner specified the requirement is not satisfied.”3

[10] The omission in the notice provided to employees is significantly different from that considered by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Inghams Enterprises Pty Ltd 4. The omission in the notice of representational rights of the provision that advises employees who are not members of a union that they have the right to appoint a bargaining representative is a significant omission. I consider that the omission invalidates the notice of representational rights.

[11] I therefore dismiss the application for approval of the Agreement.

COMMISSIONER

 1 Notice of Representational Rights schedule 2.1 to the Fair Work Regulations 2009

 2   [2011] FWAFB 6772 at [38]

 3   Ibid at [40]

 4   [2011] FWAFB 6106 at [51]-[52]

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