Kincrome Australia Pty Ltd

[2014] FWC 5328

[2014] FWC 5328

FAIR WORK COMMISSION

DECISION

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

Kincrome Australia Pty Ltd
(AG2014/1901)

COMMISSIONER ROE MELBOURNE, 5 AUGUST 2014

Application for approval of The Kincrome Australia Distribution Centre Agreement 2014 - not approved.

[1] An application has been made for approval of an enterprise agreement known as The Kincrome Australia Distribution Centre Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Kincrome Australia Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] On 31 July 2014 my Associate wrote to the Applicant advising that I had considered the Agreement and that subject to consideration of any further submissions and to the resolution of issues raised in the correspondence I was satisfied that the requirements of the legislation for the approval of the Agreement had been met. I noted that the consultation clause did not meet the requirements in respect to consultation about rosters in Section 205(1A) of the Fair Work Act 2009 and that if the Agreement was approved I would note that the model clause applied as an additional term of the Agreement. I also noted that the Applicant had not provided a copy of the notice of representational rights as required by question 2.3 of the F17 Statutory Declaration. The employer had testified that a “personalised letter and representational rights nomination slip” had been provided to employees on 20 February 2014. I requested that copies of this material and any other material distributed to employees on 20 February 2014 be provided.

[3] On 1 August 2014 the Applicant provided us with a copy of the material provided to employees.

[4] On the same day my associate wrote to the Applicant as follows:

“Thank you for your correspondence of 1 August 2014 attaching the documents referred to in the F17 Statutory Declaration.

Unfortunately the notice of representative rights which you have provided to employees is not consistent with the requirements of the legislation.

The notice you have provided does not include the following sentence which is included in the notice specified in Schedule 2.1 of the Fair Work Regulations 2009:

“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.”

The notice you have provided also contains the following additional material:

“Attached is a form that you can use to exercise your representative rights.”

The attached form when read in conjunction with the above note suggests that the bargaining representatives are confined to the warehouse staff committee and to any other person nominated by use of the form.

Section 174(1A) of the Fair Work Act 2009 provides that:

“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.”

It is apparent that the notice provided is not consistent with the requirements of Section 174(1A)(a), (b) and (c).

Although the other deficiency in the Agreement could be overcome by the Commissioner noting that the model consultation clause applies as a provision of the Agreement, there is no capacity in the legislation for the Commissioner to approve the Agreement when the notice of representational rights has not been issued in accordance with Section 174(1A).

Subject to consideration of any submission you may wish to make prior to 12 noon on Tuesday 5 August 2014 the Commissioner will issue a decision dismissing the application in this matter. The matter will be listed for hearing in chambers and you are not required to attend. However, should you wish to appear at the hearing and make a submission then the matter will be listed at the same time for a formal hearing. If you wish for this to occur you must let us know by close of business on Monday 4 August 2014.”

[5] There was a response from the Applicant on 1 August 2014. The Applicant submitted that the approach taken was similar to the approach taken in the lead up to the approval of the current agreement and that they had acted in good faith and that they were confident that employees could have nominated the union if they had wished to do so. The Applicant then advised in separate correspondence that the correct notice had been place on the notice boards. Then in a further piece of correspondence the Applicant advised that the two union members had filled out the slip nominating another employee as their bargaining representative.

[6] My associate responded to these three pieces of correspondence on 4 August 2014 advising that I was not satisfied that employees could have known that the correct notice was the one on the notice board rather than the one that was personally addressed to each of them. I also doubted that placement of the notice on the notice board was sufficient to meet the requirements of Section 173 of the Fair Work Act 2009. I also observed that the fact that two union members filled out the nominated slip reinforces rather than detracts from the conclusion that the material provided to employees suggested that it was necessary to fill in the nomination slip to appoint a representative.

[7] The Applicant made a further request on 4 August 2014, that I consider accepting an undertaking from employees “regarding the nomination/representational rights form - and their wish for Union representation”. I responded that the legislation did not provide for me to do this.

[8] The Applicant has not requested an attendance hearing or to be able to make a further submission. A notice of listing for a hearing on 5 August 2014 where attendance was not required was provided to the Applicant and to the bargaining representatives. No request to be heard was received prior to the nominated time.

[9] I am not satisfied that the requirements of Section 174(1A) of the Fair Work Act 2009 were met in the circumstances of this case. It is apparent that the notice provided is not consistent with the requirements of Section 174(1A)(a), (b) and (c). The requirements of Section 173 and Section 181(2) have therefore not been met. As consequence the employees have not genuinely agreed to the agreement as required by Section 188(a)(ii).

[10] I cannot approve the Agreement. The application is dismissed.

COMMISSIONER

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