Huntsman Chemical Company Australia Pty Limited Trading As RMAX T/A RMAX Rigid Cellular Plastics

[2014] FWC 9004

[2014] FWC 9004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Huntsman Chemical Company Australia Pty Limited Trading As RMAX T/A RMAX Rigid Cellular Plastics
(AG2014/10726)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 15 DECEMBER 2014

Application for approval of the R/Max (A division of Huntsman Chemical Company Aust. Pty Ltd) Enterprise Agreement 2014.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the R/Max (A division of Huntsman Chemical Company Aust. Pty Ltd) Enterprise Agreement 2014 (the agreement)was filed with the Fair Work Commission (the Commission) on 9 December 2014.

[2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) sworn by Mr Ray Egan, Regional Manager - RMAX Victoria. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of Employee Representational Rights (a Notice) to employees on 5 August 2014.

[3] Amendments to the Fair Work Act2009 (the Act) which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) of the Act 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 2009 (the 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 this agreement contains the content prescribed by the regulations but also contains other content.

"Fair Work Act 2009, subsection 174(6)

Huntsman Chemical Company Australia Pty Limited trading as RMAX gives notice that it is bargaining in relation to an enterprise agreement (RMAX A Division of Huntsman Chemical Company Australia Pty Ltd Enterprise Agreement 2014]) which is proposed to cover employees of R/Max Victoria (A Division of Huntsman Chemical Company Aust. Pty Ltd) located at Mephan Street, Maribyrnong 3032 in respect of all employees employed therein who perform work in or in connection with the Furnishing Industry or the Rubber Plastic and Cable Making Industry, or who are otherwise eligible members of the Unions.

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 within one (1) week of receipt of this Schedule.

I nominate .................................... To be my bargaining agent.”

[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.

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 1300 799 675.”

(emphasis added)

Consideration

[6] The Full Bench in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union[2014] FWCFB 2042 considered in detail what is required in giving a valid Notice to employees intended to be covered by a proposed enterprise agreement. In particular the Full Bench, after reviewing the terms of s.174 and subsection (1A), in particular, concluded:

“[16] The word ‘must’ in s.174(1A) is language in mandatory form.” 

[7] It continued to indicate:

“[18] Subsection 174(1A) uses language in mandatory form and goes to some length to make it clear that there can be no departure from the content or form of the Notice prescribed in the Regulations. As mentioned earlier, s.174(1A) provides that a Notice must contain the prescribed content, must not contain any other content and must be in the form prescribed.

[19] The clear and unambiguous meaning of the words of s.174(1A) is entirely consistent with the context and mischief to which the provision is addressed.

[20] As to the context, the Notice provides employees with important information about the nature of an enterprise agreement and the employees’ right to appoint a bargaining representative to assist them in bargaining for the agreement or in a matter before the Commission about bargaining for the agreement. The Notice sets out the default position for union members, that is, they will be represented by their union if they do not appoint a bargaining representative.” 

[8] It also concluded:

“[24]The clear and unambiguous meaning of s.174(1A) is entirely consistent with the objects of Part 2-4 of the Act and the important role of bargaining representatives in the negotiation of agreements.

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

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

Observations

[11] I have considered the terms of the proposed agreement and, had the application been validly made, I would have raised a number of concerns in relation to the contents of the agreement. To assist the employer I make the following observations as to the contents of the agreement. These observations are not part of the decision in this matter.

[12] Clause 5 relates to the coverage and application of the Agreement. The language used in this clause to describe the employees who are covered by the Agreement is very broad and goes beyond the classifications in clause 23. The coverage should be limited to those classifications contained din clause 23.

[13] There exist extensive cross referencing errors in the Agreement which makes the reading and understanding of the Agreement difficult. The errors occur in the following clauses:

6.1, 21.1(b), 21.8(c)(vii), 21.9, 21.10, 21.11(a), 21.11(c), 21.12(d), 22.1, 22.1(a), 22.1(b), 22.4, 22.5(b), 23.7, 25.4, 25.8, 26, 32.4, 35.2, 35.8, 35.14(i)(ii)and 40.9.

[14] Clause 39.3 contains an obvious typographical error which makes the understanding of that clause difficult.

[15] Clause 39.2 provides that in relation to the taking of personal/carer’s leave, “the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.”.

[16] The clause cannot operate and is not permitted in an enterprise agreement to the extent that it purports to set notice requirements for an employee entitled to personal/carer’s leave or compassionate leave.

[17] Section 107 of the Act provides that:

“107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

[18] The obligations on an employee to give notice to their employer in relation to personal/carer’s leave or compassionate leave are exhaustively set out in s.107(1).

[19] As is very clear from s.107(5) an enterprise agreement “may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave”. However, s.107(5) does not permit an enterprise agreement to alter the notice requirements set by s.107(1).

[20] Clause 39.5 states:

“39.5 An employee shall be paid personal/carers leave in respect of two single day absences in any year on notification to the employer within the normal hours of that day or shift that the employee was absent from work on account of personal ill-health necessitating such absence.

(a) Provided that should an employee without reasonable cause not notify the employer within the aforementioned normal working hours of that day or shift nothing in this paragraph shall limit the employees right under subclause 39.1 of this subclause.

(b) Provided further that this paragraph shall not apply in respect of a single day absence on the working day immediately preceding or following a holiday observed under this agreement or a period of annual leave.”

[21] I am unsure of what these provisions intend. The clause appears to provide an entitlement to 2 days’ personal/carer’s leave. Given that employees are entitled to 10 days’ personal/carer’s leave, this clause would appear to be unnecessary. In addition, the first proviso in (a) simply states that clause 39.5 doesn’t limit the employee’s right to the 10 days personal/carer’s leave provided for in clause 39.1, reinforcing the argument that the clause is unnecessary.

COMMISSIONER

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