Interroll Australia Pty Ltd

[2015] FWC 4097

[2015] FWC 4097

The attached document (amended page five) replaces the document previously issued with the above code on 24 June 2015.

A correction to footnote 2

Helen Coulson

Relief Associate to Commissioner Ryan

Dated 26 June 2015

[2015] FWC 4097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Interroll Australia Pty Ltd
(AG2015/3032)

COMMISSIONER RYAN MELBOURNE, 24 JUNE 2015

Application for approval of the Interroll Australia Collective Agreement 2015-2018.

[1] This decision concerns an application made for approval of an enterprise agreement known as the Interroll Australia Collective Agreement 2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Interroll Australia Pty Ltd (Interroll).

[2] This is the second application made by Interroll for approval of the above agreement. In the first matter I decided that as the requirements of s.185(2)(b) had not been complied with, because the Notice of employee representational rights (the Notice) did not contain the content and was not in the form prescribed by s.174(1A) of the Act, the Commission was prevented from approving the Agreement. 1

[3] Mr John Grundy filed the current application although it is not evident from the file that he was responsible for the filing of the previous application as he is not named as the employer’s representative in the F16 application in either matter. However, Mr Grundy has included in the current application a hand-written cover note wherein he signs off as “HR Adviser Interroll”.

[4] The Notice which accompanied the application in this matter does also not comply with s.174(1A) of the Act as it does not follow the form and the content of the notice template provided in Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations). Specifically, the Notice provided to employees in this application omitted the following relevant words:

“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.”

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

[6] As the requirements of s.185(2)(b) have not been complied with, and because the Notice in this case does not contain the content prescribed by the regulations, the application is not a valid application. The application is therefore dismissed.

Observations

[7] The following observations do not form part of the decision in this matter but are made to assist the employer get the process right if the employer wishes to try for a third time to make an enterprise agreement with its employees.

[8] Even if the Notice had contained the paragraph about an employee’s union being the default bargaining representative I still would have considered that the Notice was not in the form prescribed by s.174(1A) of the Act and Schedule 2.1 of the Fair Work Regulations. This is so because I consider that the Notice contained material additional to that specified in the Regulations.

[9] The Notice was accompanied by two other documents, both dated 7 May 2015 and on Interroll’s letterhead.

[10] Firstly, a memo from Mr Pat Cieri, Managing Director, in the following form:

“Ref: Notice Of Employee Representational Rights
Subject: Interroll Australia Collective Agreement 2015- 2018

Dear Member,

Interroll Australia has given notice to commence bargaining in relation to a workplace agreement covering factory/production employees. You have the right to appoint a bargaining representative to represent you. Attached is Scheduled 2.1 for further details.

I have also developed a form that enables you as a team to appoint your representative. Simply list the representative name where indicated and as members print and sign your name to approve the agreed nomination.

This form needs to be returned to your employee before 12th May 2015.

Supplied is a copy of the mentioned workplace agreement for the nominated representative.”

[11] The second document was the appointment form developed by Mr Cieri which was headed “Notice Of Employee Representational Rights” and which was in the following form:

“We members of Interroll Australia Collective Agreement 2015 - 2018 have appointed,

.........................................................................................................................................
[Name of representative]

In preparation for developing the next work place agreement to act as our bargaining representative.

Name of member Signature of member

1. ....................... ...................................
2. ....................... ....................................
3. ....................... ....................................
4. ........................ ....................................”

[12] In Peabody the Full Bench found that additional material accompanying the Notice can form part of the Notice for the purposes of the Act, but that the establishment of what constitutes the Notice “will turn on the evidence and particular circumstances of each case”. [PN 84 of Peabody]

[13] In my view the two documents provided to employees at the same time as the Notice are to be considered as forming part of the Notice for the purpose of s.173 and 174(1A) of the Act.

[14] The second document appears to be a collective appointment form, rather than an individual appointment form envisaged by s.178(2)(a) of the Act and makes reference to “you as a team” appointing a bargaining representative.

[15] The format of the second document allows for only one representative to be appointed as the bargaining representative for employees. Consequently, three of the four employees who voted on the Agreement nominated the other employee as their representative.

[16] The language of the first document (the memo to employees) would convey to any employee that their right to be represented in the bargaining process and their right to appoint a bargaining representative was constrained by both a time limit and by the requirement that the group appoint only one person.

[17] In my view the provision of the additional material in the form in which was provided with the Notice was intended to misrepresent to employees their rights as to representation as provided under the Act. Rather than let the plain language of the Notice as set out in Schedule 2.1 of the Regulations speak for itself the employer sought to effectively restate employees representational rights in both language and form which reduced the employees representational rights.

[18] Even if I were wrong in concluding that the two documents issued at the same time of the Notice comprised part of the Notice the employer would still have had a real problem as to whether it could satisfy the Commission that the employees genuinely agreed to the enterprise agreement.

[19] In Peabody the Full Bench held that the provision of additional material to employees at the same time as the provision of the Notice and where that material has the character of being, for example, misleading or intimidatory then this will be relevant to the Commission’s assessment of whether the enterprise agreement had been ‘genuinely agreed’ to by the employees.

[20] The first document placed a time limit on employees to return the second document to their employer “before 12th May 2015”, thus constraining an employee’s rights in relation to representation during the bargaining period.

[21] The role of bargaining representatives under the Fair Work Act was clearly identified in the Explanatory Memorandum to the Bill:

“Division 3 – Bargaining and representation during bargaining

696. Division 3 sets out the rights of employers and employees to appoint a person of their choice as their bargaining representative. It also ensures that each employee is notified of his or her right to representation when bargaining for a proposed enterprise agreement. These rules are adjusted for a proposed enterprise agreement that is a greenfields agreement and for a multi-enterprise agreement in relation to which a low-paid authorisation is in operation.

697. Bargaining representatives have a more significant formal role in the bargaining process compared to bargaining agents under the WR Act. Bargaining representatives are entitled to: bargain for enterprise agreements and depending on the type of agreement will usually be entitled to apply for (among other things) protected action ballot orders, bargaining orders, majority support determinations, scope orders and serious breach declarations. Bargaining representatives are also entitled to represent a person in matters before FWA (see clause 596). As part of their responsibilities, bargaining representatives for a single-enterprise agreement and a multi-enterprise agreement to which a low paid authorisation is in operation are required to meet the good faith bargaining requirements set out in subclause 228(1). Non-compliance with the requirements exposes a bargaining representative to bargaining orders. Division 3 also makes clear that an employer must not refuse to recognise or bargain with a bargaining representative.” 3

[22] Whilst most employees who intend to appoint to a bargaining representative are most likely to do so in the early stages of the bargaining process for an enterprise agreement this is not the only time that an employee can or will appoint a bargaining representative. Issues as to the scope of an enterprise agreement or issues relating to the perceived need for bargaining orders may arise at any time before the agreement is made. The right of employees to appoint a bargaining representative pursuant to s.178 cannot be limited by time constraints imposed by the employer.

[23] Where an employer seeks to tell employees that there are restrictions or limits (including time limits) upon the rights of employees to appoint a bargaining representative, then the employer creates an environment in which the subsequent vote of employees to approve the agreement may not be genuine.

COMMISSIONER

 1   [2015] FWC 3000.

 2   [2014] FWCFB 2042 at [45[ to [46].

 3   Explanatory Memorandum to Fair Work Bill 2008 [696] to [697].

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