GES (WA) Pty Ltd ATF GES Unit Trust T/A Gorey Electrical Services

[2014] FWC 7099

[2014] FWC 7099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GES (WA) Pty Ltd ATF GES Unit Trust T/A Gorey Electrical Services
(AG2014/9007)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 OCTOBER 2014

Application for approval of the GES (WA) Pty Ltd Enterprise Agreement 2014-2018.

[1] GES (WA) Pty Ltd applied for approval of the GES (WA) Pty Ltd Enterprise Agreement 2014-2018. The application for approval was accompanied by applications for the termination of a number of Australian Workplace Agreements.

[2] Schedule 2.1 of the Fair Work Regulations 2009 provides that the notice of representational rights given to an employee must, if the employee is covered by an individual agreement-based transitional instrument included the following:

“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).”

[3] It is not disputed that the notice of representational rights given to employees did not include that content.

[4] After the notice of representational rights was given to employees, further information was provided to employees. That circular advised employees who were employed under an ITEA or AWA and whose employment would be covered by the enterprise agreement if they were not employed under an ITEA or AWA, that they were eligible employees and were entitled to vote.

[5] It was submitted that all employees including those covered by AWA’s were given the notice of representational rights. It was submitted that these employees are therefore advised that they were entitled to appoint a bargaining representative.

[6] It was submitted that given AWA’s had not been able to be made since 28 March 2008 and given they had a maximum term of five years that any AWA made had already passed its nominal expiry date.

[7] It was submitted that the reasoning in AMWU v Inghams Enterprises Pty Ltd 1 was still relevant. In that matter the content set out in paragraph [2] was also omitted from the notice.

[8] The Full Bench in Inghams concluded as follows:

[51] A notice of employee representational rights consistent with Schedule 2.1 of the FW Regulations, except for an omission of the type made by Inghams, still notifies the employee in question that they have a right to appoint a bargaining representative. The failure to include the qualification to that right set out in item 2(3) of Schedule 13 of the TPCA Act and the additional paragraph in Schedule 2.1 of the FW Regulations merely means the employee is not notified through the notice that their right to appoint a bargaining representative or for a person to become their bargaining representative is qualified.

[52] The omission does not affect the legislative entitlement of an employee covered by an individual agreement-based transitional instrument to appoint a bargaining representative or for a person to become the bargaining representative of such an employee. That legislative entitlement is governed by item 2(2) of Schedule 13 of the TPCA Act.

[53] Against this background we have come to the view that the legislature did not intend a notice of employee representational rights to be rendered invalid because of an omission of the type made by Inghams. Given the limited effect of the omission and the centrality under the FW Act of a valid notice of employee representational rights to the making and approval of an enterprise agreement, such a conclusion is the most consistent with the attainment of the objects of the FW Act.

[54] Accordingly, we are not persuaded the omission of the qualification in item 2(3) of Schedule 13 of the TPCA Act or the additional paragraph concerning an employee covered by an individual agreement-based transitional instrument from the notice of employee representational rights given by Inghams affected the validity of the notice or was of any consequence for the making and approval of the Somerville Agreement. We dismiss the AMWU’s ground of appeal concerning the notice of employee representational rights.

[9] I accept the submission that, as in Inghams, the omission did not mislead employees about their right to be represented and the notice given to employees informed them of their right to be represented in bargaining.

[10] However Inghams was decided before the amendment to the Fair Work Act 2009 made by the Fair Work Amendment Act 2012 which inserted s.174(1A) which provides 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.

(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.

[11] In Peabody Moorvale Pty Ltd v CFMEU 2 a Full Bench concluded that “the consequence of failing to give a Notice which complies with the content and form requirements of s.174(1A) is that the Commission cannot approve the enterprise agreement.........In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity.”3

[12] I find that the notice in this case did not comply with the form and content of the notice template provided in the Regulations. Consistently with Peabody, the notice is invalid and therefore no notice as required by the Act was given.

[13] Accordingly the application for approval must be dismissed.

DEPUTY PRESIDENT

Appearances:

G Snedkar for the Applicant

Hearing details:

2014.

Melbourne:

October 6.

 1   [2011] FWAFB 6106

 2   [2014] FWCFB 2042

 3   Ibid at [45]-[46]

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