Catholic Commission for Employment Relations through its Executive Director Anthony Farley

[2013] FWC 8686

[2013] FWC 8686

FAIR WORK COMMISSION

DECISION

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

Catholic Commission for Employment Relations through its Executive Director Anthony Farley
(AG2013/10671)

TEACHERS (NSW CATHOLIC SCHOOLS - LIST D) ENTERPRISE AGREEMENT 2013

Educational services
COMMISSIONER MCKENNA	SYDNEY, 12 NOVEMBER 2013

Application for approval of the Teachers (NSW Catholic Schools - List D) Enterprise Agreement 2013 - Notice of representational rights.

[1] The Catholic Commission for Employment Relations through its Executive Director Anthony Farley (“the applicant”) has lodged an application, made pursuant to s.185 of the Fair Work Act 2009 (“the Act”), for the approval of an enterprise agreement titled the Teachers (NSW Catholic Schools - List D) Enterprise Agreement 2013 (“the Agreement”). The applicant is nominated to make the application pursuant to a single interest employer authorisation issued on 9 August 2013.

[2] The Form F17 (Employer’s Declaration in Support of Application for Approval of Enterprise Agreement) declared by the applicant indicates in response to Q.1.2 that the legal names of the employers to be covered by the Agreement are as follows:

“1. Boys Town, Engadine

2. Melkite Catholic Eparchy Corporation

3. Oakhill College

4. Our Lady of Lebanon School

5. Trustees of the Marist Brothers

6. Saint Charbel’s College

7. Trustees of the Marist Brothers

8. St Lucy’s School

9. St Maroun’s College

10. St Paul’s International College

11. Trinity Catholic College Lismore Pty Ltd”

[3] The Form F17 further indicates in response to Q.1.3 that in accordance with the numbering in the preceding paragraph, the following trading names apply:

“1. Dunlea Centre - Australia’s Original Boys’ Town

2. Holy Saviour School

3. Oakhill College

4. Our Lady of Lebanon School

5. The enterprise agreement will apply to Red Bend Catholic College, Forbes which is operated by the Trustees of the Marist Brothers Southern Province

6. St Charbel’s College

7. The enterprise agreement will apply to St Gregory’s College Campbelltown and The John Berne School Lewisham both of which are operated by the Trustees of the Marist Brothers

8. St Lucy’s School

9. St Maroun’s College

10. St Paul’s International College

11. Trinity Catholic College”

[4] The application has been the subject of proceedings on a number of occasions, most recently on 31 October and 4 November 2013 - albeit on those dates only to consider the discrete matters concerning the notices of representational rights.

[5] In this regard, some of the provisions of the Act that relevantly arise in relation to notices of representational rights are ss.173, 174, 181 and 188, and s.174(1A) in particular.

[6] The relevant provisions read 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.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.

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).

...

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

...

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 the FWC 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.”

[7] Schedule 2.1 of the Fair Work Regulations 2009 (“the Regulations”) is reproduced in full below (albeit aspects of the conditional content were not relevant to this application):

“Schedule 2.1—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].”

[8] Each of the schools issued notices of representational rights which had content that applied prior to the enactment of s.174(1A) of the Act and prior to the attendant changes to the content prescribed by the Regulations. The notices issued in relation to this Agreement apparently do not, thereby, meet requirements arising from the Act and Regulations.

[9] I have considered the cases to which reference was made in the submissions for the applicant concerning the notices, but those decisions pre-dated the more prescriptive wording of the current provisions of s.174(1A) of the Act. As to more recent decisions, see, for example, Shape Shopfitters Pty Ltd [2013] FWC 3161 and Maxitrans Pty Ltd - Hallams Panels [2013] FWC 6041 per Gooley DP; and Richard Mitchell Removals & Storage Pty Ltd[2013] FWC 6299 per Roe C.

[10] Despite the submissions for the applicant, I would not accept that s.586 of the Act, dealing with correcting and amending any application or other document relating to a matter before the Commission, would be available to address the issues concerning the notices.

[11] The Act does not appear to allow discretion concerning the form and content of a notice of representational rights, given the word “must” in relation to the matters specified in subsections (a)-(c) of s.174(1A). If it seemed the Act allowed discretion in relation to the matter, I would exercise it; that is, the departure in the content of the notices of representational rights from the prescribed form might be considered to be something akin to a misnomer of no real consequence, rather than anything that, in a practical sense, alters the advice to employees of their rights in such respects.

[12] The cases that have dealt with the notices of representational rights both prior to and following the enactment of s.174(1A) of the Act have typically considered, for example, omitted wording, alterations to wording and additional content. I would not have thought the notices of representational rights issued in relation to this Agreement could be considered to fall into the same types of categories as those previously considered. Nonetheless, given the wording of the Act and the content and form of the notice of representational rights in the Regulations, there would not appear to be scope for the exercise of discretion. See also the Explanatory Memorandum to the Fair Work Amendment Bill 2012 at items 147 and 148.

[13] Apart from the superseded content of the notices issued by all the schools, one of the notices also inadvertently did not include the name of the employer - with the result the notice issued by that particular school read “[Name of employer]” instead of inserting the name of the particular employer, albeit the notice was issued letterhead paper that named the school. In this regard, I note the observations of Roe C in Richard Mitchell Removals & Storage Pty Ltd, where he said:

“[8] This does not mean than an employer must simply copy Schedule 2.1 and issue it to employees. The very structure of Schedule 2.1 requires the employer to add essential and prescribed information such as the name of the employer and the name of the enterprise agreement and the proposed coverage of the enterprise agreement.”

[14] The defect in this notice is seemingly minor in circumstances where, I accept, it would have been reasonably plain from the letterhead paper as to which school was giving notice. Nonetheless, the notice of representational rights issued to the employees of this particular school did not conform to the prescribed form in that it did not include the name of the employer. Moreover, the defect in relation to this particular notice of representational rights appears to present further difficulties beyond the individual school itself, in circumstances where the application for the approval of the Agreement comes before the Commission as one made pursuant to a single interest employer authorisation.

[15] I note, in passing, that the nominal expiry date of the Agreement would have been the end of this year, on 31 December 2013, and negotiations are already underway concerning a new enterprise agreement. I was informed the pay increases under the Agreement are already being paid by administrative action to all employees, with the exception of employees at one school. It seems to me that it would be appropriate for the one school in question to revisit the payments to its employees when all other employees are being paid the increased rates.

[16] Given that notices of representational rights of the prescribed kind were not provided by the employers to the employees, statutory conditions-precedent for the approval of the Agreement have not been met. In the circumstances, the Agreement cannot be approved. The application is therefore dismissed.

COMMISSIONER

Appearances:

E. Leahy for the Catholic Commission for Employment Relations

C. Matthews for the Independent Education Union of Australia NSW/Act Branch

Hearing Details (re notice of representational rights):

2013.

Sydney:

October 31.

November 4.

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<Price code C,  PR544146>