Dematic Pty Ltd

[2015] FWCA 3445

[2015] FWCA 3445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dematic Pty Ltd
(AG2015/1056)

COMMISSIONER RYAN MELBOURNE, 25 MAY 2015

Application for approval of the Dematic Pty Limited - Hume DC Enterprise Agreement 2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Dematic Pty Limited - Hume DC 2015 (the agreement)was filed with the Fair Work Commission (the Commission) on 6 May 2015. The Agreement is a single-enterprise agreement.

Notice of employee representational rights

[2] Amendments to the Fair Work Act2009 (the Act) which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) of the Act states as follows:

“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.”

[3] Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations) sets out the terms of a Notice as follows:

“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



• 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 Noticecontained in the application did not include the Fair Work Commission Infoline telephone number.

[5] In Peabody Moorvale Pty Ltd v CFMEU 1the Full Bench held that “the consequence of failing to give a Notice which complies with the content and the form requirements of s.174(1A) is that the Commission cannot approve the agreement.....In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and the content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity.”

[6] As the Notice in this case does not contain the content prescribed by the regulations, the application is not a valid application. The application is therefore dismissed.

Observations

[7] I have considered the terms of the proposed agreement and, had the application been validly made, I would have raised a number of concerns in relation to the contents of the agreement. These observations are not part of the decision in this matter.

[8] The presence of clause 18.1 in the Agreement could give rise to a situation where an employee who accessed and used confidential information for the purposes of accessing or pursuing a workplace right, e.g. making an underpayment claim, could be subject to court proceedings for the imposition of a civil penalty for breach of a term of the enterprise agreement.

[9] Clause 28.5 contains a provision which permits the employer to withhold monies due to the employee if the requisite notice is not given upon termination, without the employee’s consent. I refer to the reasons set out in Hydro Chem Pty Ltd, [2014] FWCA 5163 in support of the contention that this provision is unenforceable given s.324(1)(b) of the Act.

[10] The F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement identified that at the same time that the Notice of Employee Representational Rights was issued to employees the employees were provided with a “Representative Advice Form” in order to nominate a representative if they wished. The F16 - Application for approval of an enterprise agreement identified that 20 instruments of appointment signed by an employee appointing a bargaining representative were given to the employer. Given that there were only 19 employees employed at the time the vote to approve the enterprise agreement was taken, it would appear that every employee to be covered by the enterprise agreement appointed a bargaining representative. It may be that the decision in Peabody Moorvale v CFMEU is relevant.

COMMISSIONER

<Price code A, PR567584>

 1   [2014] FWCFB 2042.

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