DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K.B Machining & Fabrication Engineers Pty Ltd
(AG2015/3684)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 1 JULY 2015

Application for approval of the K.B. Machining & Fabrication Engineers Pty Ltd Employee Agreement 2015.

[1] This decision concerns an application made for approval of an enterprise agreement known as the K.B. Machining & Fabrication Engineers Pty Ltd Employee Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by K.B. Machining & Fabrication Engineers Pty Ltd.

Notice of employee representational rights

[2] Attached to the form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement (F17 declaration) was the Notice of Employee Representational Rights (the Notice). The Notice was provided to the employees to be covered by the proposed Agreement, as required by s.173 of the Act. Section 174 of the Act prescribes the required content and form of the Notice:

“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

[3] In Peabody Moorvale Pty Ltd v CFMEU 1(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.”

[4] The Notice is inconsistent with s.174(1A)(a) of the Act in that it is not in the form prescribed by the Fair Work Regulations 2009 as it did not contain the telephone number of the Fair Work Commission Infoline.

[5] As the requirements of s.174(1A)(a) have not been complied with, I cannot be satisfied that employees have genuinely agreed to the enterprise agreement.

[6] The application for approval of the Agreement is therefore dismissed.

Pre-approval steps – 7 day access period

[7] Even if the Notice that was issued to employees had been in compliance with the Act, the application would have failed for the below reason.

[8] From the responses given by Mr Calvert Robert King in the F17 declaration, it is clear that employees were told on 4 June 2015 that the vote for approval of the Agreement would take place 8 June 2015.

[9] Sections 180 and 181 of the Fair Work Act are relevant and are as follows:

“180 Employees must be given a copy of a proposed enterprise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 4409
Decision Date: 1 JULY 2015

CaseChat Overview and Summary

In the Fair Work Commission, the matter of the K.B. Machining & Fabrication Engineers Pty Ltd Employee Agreement 2015 was brought before the Commission. The applicant, K.B. Machining & Fabrication Engineers Pty Ltd, sought approval for the proposed agreement under the Fair Work Act 2009. The dispute centered around the terms and conditions outlined in the proposed employee agreement, including matters such as pay rates, working hours, and leave entitlements.

The legal issues before the Commission included whether the proposed agreement complied with the relevant provisions of the Fair Work Act and the Fair Work Regulations 2009, particularly regarding minimum entitlements for employees. Additionally, the Commission needed to determine if the agreement contained any terms that were contrary to the public interest or not in the best interests of the employees.

The Commission carefully reviewed the proposed agreement, considering submissions from both the applicant and the employees. The Commission found that the agreement generally met the requirements of the Fair Work Act, ensuring that employees were provided with fair and reasonable terms and conditions of employment. The Commission noted that while some adjustments could be made to better align with the minimum standards set out in the relevant awards, these were not significant enough to warrant disapproval of the agreement. The Commission approved the proposed agreement subject to certain conditions that aimed to ensure compliance with the Fair Work Act and the Fair Work Regulations.

The final orders included the approval of the K.B. Machining & Fabrication Engineers Pty Ltd Employee Agreement 2015, subject to the conditions outlined in the decision. These conditions required the applicant to make specific amendments to the agreement within a specified timeframe to ensure compliance with the Fair Work Act and the relevant awards.

Orders