Diversified Services Australia Pty Ltd

[2015] FWC 2006

[2015] FWC 2006

FAIR WORK COMMISSION

DECISION

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

Diversified Services Australia Pty Ltd
(AG2015/470)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 24 MARCH 2015

Application for approval of the Diversified Services Australia Pty Ltd Enterprise Agreement 2015 - application dismissed.

[1] An application has been made by Diversified Services Australia Pty Ltd (the employer) for approval of an enterprise agreement known as the Diversified Services Australia Pty Ltd Enterprise Agreement 2015 (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 Lee Brown, Operations Manager of the employer. The Notice of Employee Representational Rights (NERR) that had been given to the employees of the employer on 19 December 2014 was not included with the application and was subsequently provided later.

[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 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):

“Notice of employee representational rights

In accordance with the Fair Work Act 2009 and Fair Work Regulation 2.05 it is the intention of Diversified Services Australia Pty Ltd to bargain towards a new Enterprise Agreement that will be known as the Diversified Services Australia Pty Ltd Enterprise Agreement 2015, which will cover all employees employed by Diversified Services Australia Pty Ltd.

...

Once the bargaining representatives have been nominated, their contact details will be supplied to you so you can contact them if you have any issues in relation to the proposed agreement, that you would like them to take to the employer on your behalf.”

[5] I wrote to the employer on 18 March 2015 to ascertain whether the NERR provided was the NERR given to employees. The applicant’s representative, Ms Julie Grant of Capital Legal Pty Ltd, confirmed by email of 18 March 2016 that the NERR provided to the Commission was the NERR given to employees.

[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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