[2014] FWC 8629

FAIR WORK COMMISSION

DECISION

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

FreeSpirit Resorts Pty Ltd
(AG2014/9785)

DEPUTY PRESIDENT SAMS

SYDNEY, 5 DECEMBER 2014

Application for approval of the FreeSpirit Employment Agreement 2014.

[1] This is an application, filed by FreeSpirit Resorts Pty Ltd (the ‘applicant’), pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), seeking the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement known as the FreeSpirit Employment Agreement 2014.

[2] In the Form F17 Employer’s Declaration, Ms Y Bristow, Chief Operating Officer, stated that the employees had been provided with a Notice of Employee Representational rights (NoERR), on 15 May 2014, prior to the vote for the commencement of the vote for the Agreement’s approval on 5 June 2014. During the course of a telephone conference with Ms Bristow on 17 November 2014, I raised some questions as to the content of the notice. Later, by email, Ms Bristow clarified the method by which the NoERR had been presented to employees as follows:

‘1. Further evidence of the documentation that we forwarded to all employees re this agreement and their ability to have representational rights was also requested.

I verbally advised that an actual flyer was not given to employees however, this process did take several months of negotiations with the employees. I have attached some email evidence of this interaction that clearly shows that the employees had ample opportunity to raise this topic with whoever they chose to discuss it with. Several emails were exchanged over content requests- some were addressed and some were unable to be recognised but the employees understood and accepted this. There were meetings held at each of sites- all 5 of the of them and all employees were invited to attend or individually raise matters with the COO of the company (myself).

The notes attached ... outline the information that was presented to all employees at this meeting. Employees were allowed to take a copy of these notes if they wished. The actual agreement was also read and further discussion on all items as required occurred- these meetings ranged between 45 minute to 2hours in duration, depending on the questions that each employee had. The final document was prepared and access given to all employees to read at their convenience. A secret ballot was taken- the results of this ballot , including the ballot slips are still held in safe storage should these be required.’

It should be noted that the notes attached to the email were a descriptive summary of the content of an enterprise agreement and the pre-approval process. They were not, either partly or in whole, in the form set out in Schedule 2.1 of the Fair Work Regulations 2009 (the ‘Regulations’).

The legislative provisions

[3] Section 174 of the Act sets out the content and form requirements of NoERRs as follows:

‘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] Pursuant to s 174(1A)(a), Reg 2.05 of the Fair Work Regulations 2009 (the ‘Regulations’) sets out that the text in Schedule 2.1 is prescribed, which is as follows:

‘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] S 186 sets out the circumstances in which the Commission must approve an application made pursuant to s 185:

‘Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms
(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms
(4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.
(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure [emphasis added].’

[6] S 188(a)(ii) of the Act sets out that in order for the Commission to be satisfied that the employees have genuinely agreed to approve the Agreement (s 186(2)(a)), it must be satisfied that s 181(2) has been complied with. This requires that employees cannot be requested to approve an enterprise agreement until 21 days after the last NoERR is given, pursuant to s 173(1). This must be in the form as set out in s 174 of the Act. In short, the defect in the NoERR means that the Commission cannot be satisfied that the employees have ‘genuinely agreed’ to approve the Agreement. In Otswald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 9512, the Full Bench, by majority, said in respect to the same omission in the NoERR as in this case:

‘[89] Properly construed, in the broader context of the Act, s.188(1)(b) of the Act requires the giving of notice of employee representational rights 21 days prior to a request to approve an enterprise agreement under s.181 in the terms required by s.174 of the Act, which includes advice of default representation in s.174(3). The notice given in this case, which omitted the information to employees required by s.174(3) was not a notice as required by s.188(1)(b).

[90] Commissioner Booth was correct in her construction of the Act and was correct in her conclusion that the employer has not complied with s.173(1) and therefore notice was not given for the purposes of the 21 days time frame in s.181(2). The Commissioner’s decision not to approve the Agreement was correct [footnote omitted].’

See also: Veolia Environmental Services (Aust) Pty Ltd v Australian Workers’ Union[2013] FWCFB 269.

[7] Given the circumstances of this case as outlined above, the application must be dismissed. I order accordingly.

DEPUTY PRESIDENT

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