John e. Slee Pty Ltd

[2014] FWC 6014

[2014] FWC 6014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

John e. Slee Pty Ltd
(AG2014/6728)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 SEPTEMBER 2014

Application for approval of the John e. Slee Pty. Ltd. and the Employees of John e. Slee Pty. Ltd. Agreement Number 1. 2014 ---2018; not approved

[1] An application has been made for approval of an enterprise agreement known as the John e. Slee Pty. Ltd. and the Employees of John e. Slee Pty. Ltd. Agreement Number 1. 2014 ---2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by John e. Slee Pty Ltd. The agreement is a single enterprise agreement.

[2] A hearing was conducted in this matter on 19 August 2014, where I raised with the Applicant a number of concerns I had with the application for approval of the Agreement. One of the concerns raised was the form of the Notice of Employee Representational Rights that was distributed to the employees of John e. Slee (Annexure A).

[3] The Notice of Employee Representational Rights distributed to employees does not comply with the requirements of s. 174(1A) of the Act as it is not in the form prescribed by Schedule 2.1 of the Fair Work Regulations 2009.

[4] Recently in Peabody Moorvale v CFMEU[2014] FWCFB 2042, a Full Bench of the Fair Work Commission said at paragraphs [46] - [47]:

“In our view s 174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity. We agree with the Minister's submissions on this point, that is:

A mandatory template is provided in the Regulations. The provisions make it clear that there is not scope to modify either the content or the form of the Notice other than as set out in the template.

Taking into account the considerations identified in Project Blue Sky we have concluded that the legislative purpose of s 174(1A) is to invalidate any Notice which modifies either the content or form of the Notice template provided in Sch 2.1 of the Regulations. We now turn to the facts of this case to determine whether the Notice given by Peabody complies with Sch 2.1”.(Footnotes omitted)

[5] I am not satisfied that the requirements of s. 174(1A) of the Act were met. It is apparent that the notice provided is not consistent with the requirements of s. 174(1A)(a) and (c). The requirements of s. 173 and s. 181(2) have therefore not been met. As consequence I am not satisfied that the employees have genuinely agreed to the Agreement as required by s. 188(a)(ii).

[6] For the above reasons I cannot approve the Agreement. The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR554925>

Annexure A