CLPJ Holdings Pty Ltd T/A CLPJ Business Consultancy

[2015] FWC 711

[2015] FWC 711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CLPJ Holdings Pty Ltd T/A CLPJ Business Consultancy
(AG2014/11076)

DEPUTY PRESIDENT SMITH MELBOURNE, 5 FEBRUARY 2015

Application for approval of the Geelong Cemeteries Trust Indoor Staff Enterprise Agreement 2014-2017 - notice of employee representational rights did not comply with the requirements of the Fair Work Act 2009 - application for approval dismissed.

[1] On 30 December 2014, CLPJ Holdings Pty Ltd T/A CLPJ Business Consultancy made application to the Fair Work Commission (the Commission) under section 185 of the Fair Work Act 2009 (the Act) for the approval of the Geelong Cemeteries Trust Indoor Staff Enterprise Agreement 2014-2017 (the Agreement).

[2] Section 174(1A) of the Act provides that the notice of employee representational rights must contain the content, and be in the form, prescribed by the Fair Work Regulations (the Regulations). Regulation 2.05 states:

“For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[3] This is a pre-condition to the certification of an Agreement. The importance of this pre-condition was discussed in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union 1 where a Full Bench decided 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.........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.”

[4] The notice template is in the following terms:

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].

[5] The notice of employee representational rights provided to employees did not comply with the template for such a notice as set out in Schedule 2.1 of the Regulations.

[6] As the notice requirements have not complied with the approval steps under section 174 of the Act, I am unable to approve Agreement.

[7] The application in this matter is therefore dismissed.

DEPUTY PRESIDENT

 1   [2014] FWCFB 2042

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