Interroll Australia Pty Ltd

[2015] FWC 3000

[2015] FWC 3000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Interroll Australia Pty Ltd
(AG2015/2519)

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

Manufacturing and associated industries

COMMISSIONER RYAN MELBOURNE, 5 MAY 2015

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Interroll Australia Collective Agreement 2015-2018 (the agreement)was filed with the Fair Work Commission (the Commission) on 28 April 2015. The Agreement is a single-enterprise agreement.

Signature Requirements

[2] Section 185(2) of the Act provides that an application for approval of a single-enterprise agreement must be accompanied by a signed copy of the agreement. Regulation 2.06A of the Fair Work Regulations sets out the requirements for signing an agreement. An Agreement must be signed by both the Employer and at least one bargaining representative.

[3] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[4] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[5] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the Act as it did not include an address of each of the employer and employee representatives who signed the agreement as required by Regulation 2.06A.

[6] 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 Pat Cieri, Managing Director of Interroll Australia Pty Ltd. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of Employee Representational Rights (the notice of representational right) to employees.

Notice of employee representational rights

[7] 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.”

[8] 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].”

[9] The Noticecontained in the application did not include the Fair Work Commission Infoline telephone number.

[10] In Peabody Moorvale Pty Ltd v CFMEU  1the 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.”

[11] 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

[12] 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.

[13] A reading of the parties bound provision in clause 3 of the Agreement conveys that the Agreement covers all employees of the employer at its Thomastown site, not just production employees. However the employer’s statutory declaration identifies that the Agreement is only to apply to production employees.

[14] The provisions relating to the operation of the agreement at clause 4 are not compliant with the Act. An enterprise agreement operates 7 days after it is approved by the FWC (s.54(1)(a)) and remains in operation until such time as it is replaced by another agreement (s.58) or is terminated pursuant to the relevant provisions of Part 2-4 of the Act.

[15] Clause 6 refers to the calling up of the terms of the modern award. The intention of this clause is unclear. If the parties intend that the terms of the modern award are incorporated into the agreement, then that language should be used.

[16] Clause 7 states that “The company and the employees must not, for the duration of this agreement, pursue any extra claims in relation to any matters...”. This provision would operate to preclude employees from making claims during the bargaining for a new enterprise agreement which the Act permits after an enterprise agreement has reached its nominal expiry date.

[17] The Agreement does not contain any wage rates to enable a proper BOOT analysis.

[18] The notice and evidence requirements contained in clauses 16 and 18 contain provisions which have more onerous obligations on the employee than is provided for in the Act, which states:

“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).”

[19] Clause 20 contains a definition of ‘immediate family’ in relation to compassionate leave which is very different to the provisions of the Act (ss104 and 105).  The definition of ‘immediate family’ in this clause is narrower than the Act. It does not include ‘former spouse’ and ‘former de facto partner’.

[20] The Agreement does not contain a consultation term which meets the requirements of s.205(1) and (1A) of the Act.

[21] Clause 34 purports to give employees involved in community service activities special consideration. This misrepresents to employees their rights under the Act. Engagement by employees in community service activities triggers the following entitlements under the Act:

“108 Entitlement to be absent from employment for engaging in eligible community service activity

An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if:

(a) the period consists of one or more of the following:

(i) time when the employee engages in the activity;
(ii) reasonable travelling time associated with the activity;
(iii) reasonable rest time immediately following the activity; and

(b) unless the activity is jury service—the employee’s absence is reasonable in all the circumstances.”

COMMISSIONER

 1   [2014] FWCFB 2042 at [45] to [46].

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