REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

FNQ Sugar Services Pty Ltd
(AG2015/4792)

Sugar industry
DEPUTY PRESIDENT ASBURY	SYDNEY, 10 SEPTEMBER 2015

Application for approval of the Innisfail Babinda Regional Mills Enterprise Bargaining Agreement 2015 – Notice of employee representational rights – Disconformity with mandatory template.

[1] FNQ Sugar Services Pty Ltd applied for approval of an enterprise agreement known as the Innisfail Babinda Regional Mills Enterprise Bargaining Agreement 2015 (the 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 Australian Workers’ Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that these organisations want the Agreement to cover them. Each of those organisations has indicated support for the approval of the Agreement and for the Declaration in support of approval made by the employer.

[3] I am generally satisfied that the requirements for approval of the Agreement have been met and I have approved the Agreement and issued a Decision to that effect. 1 However, in considering the application for approval I had concerns in relation to the form and content of the Notice of employee representational rights issued by FNQ Sugar Services Pty Ltd pursuant to s. 173 of the Act (the Notice). Given the potential consequences of approving an enterprise agreement in circumstances where the legislative requirements in relation to a Notice of employee representational rights are not complied with, I set out below my reasons for approving the Agreement notwithstanding those concerns.

[4] The legislative provisions concerning the content and form of a notice of employee representational rights are found in s. 174 of the Act. The provisions are clear and unambiguous - it is difficult to see how they could be clearer. They are in the following terms:

“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

(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.

[5] A mandatory template for a valid notice of employee representational rights is provided in Schedule 2.1 of the Fair Work Regulations 2009. The template makes clear that it cannot be modified other than as set out in the template, which provides for some information to be added (such as the name of the employer, the name of the proposed agreement and its proposed coverage) and allows for some content to be deleted where it is not relevant to the employer.

[6] The template is available on the Fair Work Commission website at in both word and PDF formats. The Commission also publishes a Guide to the Notice of employee representational rights emphasising the need for conformity with the template and providing information about how to complete the Notice including information that should be added to it and an explanation of the circumstances in which content that is not relevant to the particular employer or employees may be deleted.

[7] A number of Full Bench Decisions in recent times have emphasised that failure to issue a notice complying with the requirements of the Act and Regulations in relation to form and content, goes to validity. In short, where the requirements have not been met the Commission cannot approve an agreement.

[8] It should be a simple matter for employers to download the Notice from the Commission’s website, include the required information in the introductory paragraph, delete the content that is not relevant, and give it to employees. The number of cases where the employer does not comply with these requirements is surprising.

[9] When the Commission is placed in the position of being required to refuse to approve an enterprise agreement that would otherwise be capable of approval, because of an invalid notice being provided to employees, the consequences for the employer, the employees and bargaining representatives are significant. All concerned in the making and approval of an enterprise agreement generally invest considerable time and effort in the process. The result of an invalid notice is that the approval process may be required to repeated, resulting in inconvenience and in cases where the group of employees to be balloted is large, significant cost.

[10] To refuse an agreement solely on the basis of what should be a simple administrative matter, also places the Commission in a difficult position. The Commission has no discretion to approve an agreement on the basis that there is substantial compliance with the Notice requirements. In recent times I have been required to consider a number of enterprise agreements made by employers that I know to be large employers with dedicated human resource management expertise or access to such expertise, and who have not provided a valid notice to their employees. As a result, I have been required to inform those employers and the bargaining representatives that their agreement – which would otherwise be capable of approval – cannot be approved.

[11] In the present case, the Notice given to employees by FNQ Sugar Services Pty Ltd was set out on a single page. An introductory paragraph in the following terms appears at the top of the page:

“To South Johnstone Mill Wages Employees

It is intended that negotiation for the enterprise Bargaining Agreement outlined in the notice below will commence on Thursday 5 February 2015.

EBA REPESENTATION (sic) NOTICE”

[12] Immediately below this heading and introductory paragraph, contained within a thick black border, is the Notice. It is not the current Notice as prescribed in Schedule 2.1 of Regulation but a previous version that refers to “Fair Work Australia”.

[13] There are two issues with the Notice as provided by FNQ Sugar Services Pty Ltd. The Notice contains additional content to that prescribed in the mandatory template. As a Full Bench of the Commission held in Peabody Moorvale Pty Ltd v CFMEU: 2

“…First, s 174(1)(A)is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the notice is given t. them. Subsection 174(1)(A) is directed at the form and content of the Notice. It doe3s not require the notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employer from providing employees with a simple covering letter or an offer of interpreter services..

Secondly, where additional material accompanies a document which contains the content, and is in the form, prescribed in the Regulations, the issue to be determined is what purports to be the Notice. This is a question of fact.

Thirdly, where additional material is provided with the Notice and that material has the character of being, for example, misleading or intimidatory, then this will be relevant to the Commission’s assessment of whether the enterprise agreement had been ‘genuinely agreed’ by the employees. However, it is not a basis for finding that a Notice has not been given in accordance with the Act. 3

[14] In the present case, the Notice is set out inside a text box. The additional content is outside the text box. It is introductory and is not purported to be part of the Notice. The inclusion of a text box makes it clear that the text within the box is the Notice and that other text is not part of the Notice. But for the text box, the outcome in this case may have been different. The additional content is innocuous and cannot in any way be said to be misleading or intimidatory so that no issue arises as to whether the agreement has been genuinely agreed to.

[15] The notice also refers to the Commission by its former name – “Fair Work Australia”. This issue was dealt with by a Full Bench of the Commission in Serco Australia Pty Limited v United Voice and the Union of Christmas Island Workers. 4In that case the Full Bench held that s. 25B(1)(b) of the Acts Interpretation Act as it was at 25 June 2009, operated in respect of a Notice to render it compliant with s. 174(1A) of the Act, notwithstanding that it referred to the Fair Work Commission by its former name.

[16] Consistent with the Full Bench Decisions in Peabody Moorvale and Serco the Notice in the present case is valid, despite its disconformity with the prescribed form. As I was otherwise satisfied that the requirements of the Act with respect to approval were met, I approved the Agreement.

DEPUTY PRESIDENT

1 [2015] FWCA 6204

2 [2014] FWCFB 2042.

3 Ibid

4 [2015] FWCFB 5618.

Printed by authority of the Commonwealth Government Printer

FNQ Sugar Services Pty Ltd

[2015] FWC 6290

10 SEPTEMBER 2015

REASONS FOR DECISION