Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Summary

[2014] FWC 914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2013/11863)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 5 FEBRUARY 2014

Application for approval of the Sielox Security Systems Pty. Limited and ETU Enterprise Agreement 2010-2014 - Notice of Employee Representational Rights - application dismissed.

[1] An application has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for approval of an enterprise agreement known as the Sielox Security Systems Pty. Limited and ETU Enterprise Agreement 2010-2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer’s Declaration in Support of the Application for Approval was made by Mr Rick Ponton, the Victorian Manager of Sielox Security Systems Pty Limited (Sielox). Attached to that Declaration was a Notice of Employee Representational Rights (NERR) that had been given to the employees of Sielox on 3 October 2013.

[3] Section 174 of the Act provides as follows:

“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

(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).”

[4] The NERR attached to the Employer’s Declaration is inconsistent with s.174(1A)(a) of the Act in that it does not include the following content as prescribed by the Fair Work Regulations 2009:

“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 bargaining representative.”

[5] I wrote to the parties on 28 January 2014 to ascertain that the NERR provided with the application was the NERR given to the employees. On 30 January 2014 this was confirmed in an email from representative of Sielox.

[6] As the requirements of s.174(1A)(a) have not been complied with, I cannot be satisfied that employees have genuinely agreed to the enterprise agreement. Accordingly, I am not satisfied that the requirements of s.186 of the Act have been satisfied.

[7] The application for approval of the Agreement is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Fair Work Commission was asked to consider the approval of the Sielox Security Systems Pty. Limited and ETU Enterprise Agreement 2010-2014. The applicant, the union, sought approval of the agreement, while the employer contested the application on the basis that it was not a genuine enterprise agreement as required by the Fair Work Act 2009. The dispute centred around whether the agreement genuinely represented the employees and whether the union had appropriately exercised its employee representational rights.

The central legal issues before the Commission were whether the agreement had been properly certified as a genuine enterprise agreement and if the union had complied with the requirements of the Fair Work Act. Specifically, the Commission needed to determine if the union had acted appropriately in notifying employees of their representational rights and if the employees had genuinely been given an opportunity to be represented by an organisation of their choice. The employer argued that the union did not provide adequate notice to employees, thus questioning the legitimacy of the agreement.

The Fair Work Commission found that the union had failed to provide adequate notice of employee representational rights as required by the Fair Work Act. Consequently, the Commission held that the union had not appropriately exercised its rights in the negotiation and certification process. Given this finding, the application for approval of the enterprise agreement was dismissed. The Commission concluded that without proper compliance with the representational rights provisions, the agreement could not be certified as a genuine enterprise agreement.

As a result of the decision, the Fair Work Commission dismissed the application for approval of the Sielox Security Systems Pty. Limited and ETU Enterprise Agreement 2010-2014. The employer's objection was upheld, and the agreement was not certified, rendering it ineffective. This outcome underscores the importance of adhering to procedural requirements in the negotiation and certification of enterprise agreements to ensure they are genuinely representative of the employees.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established