Glenelg Hopkins Catchment Management Authority

[2013] FWC 9415

[2013] FWC 9415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Glenelg Hopkins Catchment Management Authority
(AG2013/10979)

COMMISSIONER BISSETT MELBOURNE, 4 DECEMBER 2013

Application for approval of the Glenelg Hopkins Catchment Management Authority Workplace Agreement 2013-2016.

[1] The Glenelg Hopkins Catchment Management Authority (the Authority) made an application for approval of the Glenelg Hopkins Catchment Management Authority Workplace Agreement 2013-2016 (the Agreement) on 18 October 2013.

[2] The file was allocated to me to determine if the Agreement should be approved.

[3] On consideration of the material submitted in conjunction with the application my associate wrote to the Authority on my instruction on 28 October 2013 and raised three issues with them: firstly whether the Notice of Employee Representational Rights (NERR) issued to employees complied with the requirements of the Fair Work Act 2009 (the Act); second if the Agreement was capable of being approved if the notice did not meet the requirements of the Act; and, third whether an employee representative could nominate himself to represent other employees.

[4] On 6 November 2013 Ms Elliot of the Authority rang my chambers and asked my associate how the Authority could resolve the issue of the incorrect notice being sent out and advised she would provide an explanation for what had happened in writing.

[5] On 13 November 2013 my associate followed up with Ms Elliot of the Authority and asked for a written response to the matters raised in the letter of 28 October 2013. Ms Elliot was advised that if a response was not received by 29 November 2013 that application would be determined on the basis of the material before the Commission. Following a request from Ms Elliot she was provided with a link to the appropriate NERR on the Commission website.

[6] On 26 November 2013 I received a letter from Ms Elliot in which Ms Elliot agreed that the NERR did not comply with the requirements of the Act. She indicated that, since receiving the link to the NERR on the Commission website, the correct notice had been issued to employees. With respect to the employee representative Ms Elliot advised that he had been nominated by staff by virtue of his nomination by staff as Chairman of the Staff Management Working Group.

Consideration

[7] The NERR sent to staff of the Authority in April 2013 was contained in a staff memo. It reads:

We have now reached a point in our EBA process to commence negotiations.

The Fair Work Regulations 2009- Schedule 2.1 - Notice of employee representational rights, state:

As an employee who will 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 the 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.

Should you wish to nominate yourself or someone else as a bargaining representative, please provide the nomination to myself prior to Wednesday 24^th April 2013.

Regards

...

[8] This notice clearly does not accord with the notice contained at Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations).

[9] Section 174 of the Act states:

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

(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.

[10] It is readily apparent that the notice sent to employees did not contain the content as prescribed by the Regulations. The NERR sent to employees in April 2013 therefore does not comply with the requirements of the Act.

[11] Section 174(1A) was inserted into the Act by the Fair Work Amendment Act 2012. The Explanatory Memorandum says, of this amendment:

...The amendment is intended to eliminate confusion about whether employers may modify the content or form of the notice of employee representational rights. The amendment would make clear that the notice must contain only the content prescribed by the regulations and no other content except that which the regulations require an employer to insert or omit. 1

[12] This makes it clear that the nature of the amendment is to ensure that the NERR sent to employees is in the form prescribed by the Regulations and that it contain no other content except what the Regulations require the employer to insert of omit that content.

[13] There is no provision in the Regulations that allows the Authority to omit those parts of the notice that it left out.

[14] Section 188 of the Act states:

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[15] Section 181(2) of the Act states that employees must not be requested to vote for an agreement ‘until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.’ If this condition is not met it is apparent that, in accordance with s.186(2)(a) of the Act, the Commission cannot be satisfied that the enterprise agreement will not have been genuinely agreed to. The requirement that the Commission be satisfied that an enterprise agreement was genuinely agreed to is a mandatory requirement for approval of an enterprise agreement.

Conclusion

[16] In the circumstances of this case a valid notice under subsection 173(1) has not been given to employees at least 21 days prior to them being asked to approve the agreement. By virtue of s.188 of the Act the Agreement cannot therefore have been genuinely agreed to by employees.

[17] The Commission does not have the power to approve an agreement unless it can be satisfied that the agreement was genuinely agreed to (s.186(2)).

[18] For these reasons the application for approval of the Agreement is dismissed.

COMMISSIONER

 1   Fair Work Amendment Bill 2012 Explanatory Memorandum at [147]

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