Elgas Limited

[2014] FWC 3819

[2014] FWC 3819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Elgas Limited
(AG2014/1276)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 10 JUNE 2014

Application for approval of the Elgas Limited Technical Division Workplace Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Elgas Limited Technical Division Workplace Agreement 2013 was filed with the Commission on 2 June 2014.

[2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement sworn by Mr Robert Ferrarin, Human Resources Manager. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of Employee Representational Rights (the Notice) to employees.

[3] Amendments to the Act which commenced on 1 January 2013 clarified what must be in a Notice of Employee Representational Rights. Section 174(1A) 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.”

[4] Schedule 2.1 of the Fair Work 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

● a 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].”

[5] The Notice issued to employees in relation to the Agreement included the following words:

“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.”

[6] In response to the question posed at 1.5 of the Form F17 - Has a scope order or a low paid authorisation been issued in relation to this agreement? - the employer has declared ‘no’.

[7] It therefore follows that the Notice should have included the words:

“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.”

[8] As the Notice did not contain those words, the requirements of Schedule 2.1 of the Regulations have not been met and thus there is non-compliance with the requirements of s.174(1A).

[9] Non compliance with s.174(1A) by the employer means that there is no valid enterprise agreement before me.

[10] The application in this matter is therefore dismissed.

COMMISSIONER

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