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.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission (FWC) recently addressed an application for the approval of the Diversified Services Australia Pty Ltd Enterprise Agreement 2015. The application was brought by the employer, Diversified Services Australia Pty Ltd, seeking to have the agreement approved as a registered enterprise agreement. The respondents to the application were the unions representing the employees, who contested the employer's application on various grounds.

The primary legal issues that the FWC needed to decide were whether the agreement met the requirements of the Fair Work Act 2009 for registration, including whether the agreement had been fairly negotiated, and whether it complied with the provisions of the Act. The FWC also had to consider the fairness test, which requires that the agreement be assessed to ensure that it did not disadvantage employees. Additionally, the FWC examined the procedural fairness of the negotiation process and whether there were any irregularities that could invalidate the agreement.

In reaching its decision, the FWC first considered the evidence of the negotiation process and found that there were significant procedural irregularities in the way the agreement was negotiated. The FWC determined that these irregularities were substantial enough to undermine the fairness of the negotiation process. Consequently, the FWC concluded that the agreement did not meet the requirements for registration under the Fair Work Act 2009. The FWC further held that the agreement did not pass the fairness test, as it contained provisions that were detrimental to the employees. Therefore, the FWC dismissed the application for approval of the enterprise agreement.

The FWC's final order was that the application for approval of the Diversified Services Australia Pty Ltd Enterprise Agreement 2015 be dismissed. The FWC found that the agreement did not comply with the Act due to the procedural irregularities in the negotiation process and the unfair provisions contained within the agreement.

Diversified Services Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established