Diamond Dell Pty Ltd ATF the Kez's Kitchen Trust T/A Kez's Kitchen

[2014] FWC 9374

[2014] FWC 9374

FAIR WORK COMMISSION

DECISION

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

Diamond Dell Pty Ltd ATF the Kez's Kitchen Trust T/A Kez's Kitchen
(AG2014/10118)

DEPUTY PRESIDENT KOVACIC CANBERRA, 22 DECEMBER 2014

Application for approval of the Kez's Kitchen and National Union of Workers Enterprise Agreement 2014.

[1] An application has been made by Diamond Dell Pty Ltd ATF the Kez’s Kitchen Trust T/A Kez’s Kitchen for approval of an enterprise agreement known as the Kez's Kitchen and National Union of Workers Enterprise Agreement 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 Michael Carp, the Managing Director of Kez’s Kitchen. Attached to that Declaration was a Notice of Employee Representational Rights (NERR) that had been given to the employees of Kez’s Kitchen on 2 May 2014.

[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
(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).”

[4] The NERR attached to the Employer’s Declaration is inconsistent with s.174(1A)(a) of the Act in that it in that it includes the following content which is in addition to that prescribed by the Fair Work Regulations2009 (the FW Regulations):

“I am writing to inform you that Kez’s Kitchen seeks to enter into discussions to make a new enterprise agreement with our staff. This is because the current enterprise agreement, Kez’s Kitchen & National Union of Workers Enterprise Agreement 2011, will expire on 1 July 2014. We have contacted Dominic Melling of the NUW to advise him of our intention to negotiate a new enterprise agreement.

It is a legal requirement that the company provides you with written notice about your rights in the making of an enterprise agreement (Fair Work Act 2009, subsection 174 (6)). These are outlined in this letter.

...

What happens if the new Agreement isn’t made?

The terms and conditions of the Kez’s Kitchen and National Union of Workers Enterprise Agreement 2011 will continue to apply and no employee shall suffer any reduction in their terms of employment.”

[5] I wrote to the parties on 15 December 2014 to ascertain whether the NERR provided with the application was the NERR given to employees. The applicant’s representative, Ms Kerryn Dillon, subsequently contacted the Commission to advise that the NERR provided with the application was the NERR given to employees, with that advice confirmed by email on 22 December 2014.

[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.

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