DP World Melbourne Limited

[2015] FWC 8235

[2015] FWC 8235

FAIR WORK COMMISSION

DECISION

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

DP World Melbourne Limited
(AG2015/6659)

COMMISSIONER CAMBRIDGE SYDNEY, 27 NOVEMBER 2015

Application for approval of the DP World Melbourne Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the DP World Melbourne Enterprise Agreement 2015(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DP World Melbourne Limited (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Melbourne on 12 November 2015. The application included a Statutory Declaration of Aimee Quintal made on behalf of the Employer and dated 12 November 2015 (the Declaration). The Declaration stated that the Agreement was allegedly made on 4 November 2015. Therefore the application appeared to have been lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] The Agreement document that was provided with the application was signed on behalf of the Employer and also on behalf of the Maritime Union of Australia (the MUA). The MUA provided a Statutory Declaration as an employee organisation in relation to the application which supported the application, agreed with the Declaration, and gave notice under s.183 of the Act that it wants the MUA to be covered by the Agreement.

[4] The Declaration relevantly provided information about the voting for the Agreement conducted in accordance with s.181 of the Act. Importantly, the Declaration stated that of the 332 valid votes that were cast, only 25 voted to approve the Agreement. Therefore there was not a majority of those employees who cast a valid vote to approve the Agreement.

[5] The Agreement was not made in accordance with s. 182(1) of the Act. An application made under s.185 of the Act must, except in the case of a greenfields agreement, be made in respect to an agreement that has been made in accordance with s.182 of the Act. The application is invalid and must be dismissed.

[6] I also note that there were some deficiencies with the Notice of Employee Representational Rights (NERR) that was provided with the application. A NERR must, inter alia, contain the content prescribed by the Regulations, not contain any other content, and be in the form prescribed by the Regulations.

[7] In this instance the NERR contained other content and it incorrectly referred to the DP World Melbourne Enterprise Agreement 2014. Although these deficiencies may be considered to be insignificant, a Full Bench of the Commission issued a Decision on 2 April 2014 1 which dealt with inter alia, the operation of the provisions of section 174 of the Act. Importantly this Full Bench Decision included the following extracts:

“[33] The Panel characterised the decision in Galintel as supporting the proposition that a Notice need only substantially comply with the requirements of s.174 and Schedule 2.1. The recommendation was a repudiation of the proposition that substantial compliance with the content and form of the Notice in Schedule 2.1 was sufficient. The ‘mischief’ Parliament was seeking to address in responding to the Panel’s recommendation and enacting subsection 174(1A) was the past practice of making alterations to the content or form of the Notice.” [emphasis added]

[39] The language of s.174(1A), the context and legislative purpose all support the proposition that a failure to comply with the provision goes to invalidity.”

[8] A more recent Full Bench Decision of the Commission 2 has dealt with the operation of the Acts Interpretation Act 1901 in respect to certain content of a NERR which did not result in any invalidity of a NERR which did not strictly comply with the Regulations. In this instance the alterations to the NERR were minor but they may not be capable of being accommodated via the operation of the Acts Interpretation Act 1901 or otherwise avoid invalidity.

[9] In any event, the question of strict compliance of the NERR does not require further contemplation because the application was made in respect to an agreement that was not made in accordance with s.182 of the Act. The application is therefore invalid. Accordingly the application is dismissed.

COMMISSIONER

 1   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.

 2   Serco Australia Pty Limited v United Voice and Union of Christmas Island Workers [2015] FWCFB 5618.

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