Inco Ships Pty Ltd

[2014] FWC 4471

[2014] FWC 4471

FAIR WORK COMMISSION

DECISION

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

Inco Ships Pty Ltd
(AG2014/958)

COMMISSIONER CAMBRIDGE SYDNEY, 4 JULY 2014

Application for approval of the Inco Ships Pty Ltd Officer Collective Agreement 2013 CSL Thevenard.

[1] An application has been made for approval of an enterprise agreement known as the IncoShips Pty Ltd Officer Collective Agreement 2013 CSL Thevenard(the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by the Inco Ships Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 24 April 2014. The application included a Statutory Declaration of Cassandra Konnecke made on behalf of the Employer and dated 24 April 2014, (the Declaration). The Declaration stated that the Agreement was made on “11 April 20”, which has been accepted to have meant 11 April 2014. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] The application for approval was listed for Hearing on 27 May 2014, at which time Mr C Ridings and Ms C Konnecke appeared for the Employer. During the proceedings held on 27 May, the Fair Work Commission (the Commission) identified some deficiencies with the application and the Employer was also alerted to various issues relating to the contents of certain terms contained in the Agreement which were of concern to the Commission. The Employer was invited to consider the deficiencies and the other concerns which had been raised by the Commission and in due course, make comment and or advance any proposed rectification of the identified deficiencies and concerns.

[4] Lawyers acting for the Employer have subsequently made various written submissions which have suggested rectification of the identified deficiencies and concerns. The application was also listed for further Hearing on 1 July 2014, at which time Ms S Zeitz appeared (via video link) for the Employer and made very persuasive verbal submissions in support of the proposed rectifications of the deficiencies and concerns.

[5] Part 2-4 of the Act includes various procedural requirements which must be satisfied before the Commission can approve of an enterprise agreement. One of these procedural requirements is specified by section 174 of the Act which states as follows:

“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.

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).”

[6] As can be seen from subsection 174 (1A), a notice of representational rights must, inter alia, contain the content prescribed by the regulations, not contain any other content, and be in the form prescribed by the regulations.

[7] A Full Bench of the Commission issued a Decision on 2 April 2014 1 which dealt with inter alia, the operation of the provisions of section 174 of the Act. Importantly this Full Bench Decision included the following extracts:

“[33] The Panel characterised the decision in Galintel as supporting the proposition that a Notice need only substantially comply with the requirements of s.174 and Schedule 2.1. The recommendation was a repudiation of the proposition that substantial compliance with the content and form of the Notice in Schedule 2.1 was sufficient. The ‘mischief’ Parliament was seeking to address in responding to the Panel’s recommendation and enacting subsection 174(1A) was the past practice of making alterations to the content or form of the Notice.” [emphasis added]

“[39] The language of s.174(1A), the context and legislative purpose all support the proposition that a failure to comply with the provision goes to invalidity.”

[8] In this instance, the Declaration included at Appendix 2, a copy of the notice of employee representational rights which although substantially in compliance with the content and form prescribed by the regulations, contained additional content and omitted some content specified in the regulations.

[9] Consequently the application for approval of the Agreement does not comply with the requirements of section 174 of the Act. The nature of this particular aspect of the non-compliance manifests as a deficiency which renders the application to be invalid.

[10] Unfortunately in this instance the application contains deficiencies. Although some of these deficiencies and other concerns could be redressed, the particular deficiency which has arisen under section 174 of the Act cannot be rectified and renders the application as invalid. Accordingly, and somewhat regrettably in this particular case, the application must be dismissed.

COMMISSIONER

Appearances:

Ms S Zeitz, solicitor from Zeitz Workplace Lawyers, on behalf of the Employer on 1 July 2014;

Mr C Ridings from EMA Consulting together with Ms C Konnecke,on behalf of the employer on 27 May 2014.

Hearing details:

2014.

Sydney:

May, 27 & July, 1.

 1   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.

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