Kindaland Pty Ltd trading as Kindaland Childcare Centre

[2013] FWC 8108

[2013] FWC 8108

FAIR WORK COMMISSION

DECISION

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

Kindaland Pty Ltd trading as Kindaland Childcare Centre
(AG2013/2577)

DEPUTY PRESIDENT SMITH MELBOURNE, 15 OCTOBER 2013

Application for approval of the Enterprise Agreement 2013 Kindaland Pty Ltd—application dismissed.

[1] On 28 August 2013 Kindaland Pty Ltd lodged an application for approval of the Enterprise Agreement 2013 Kindaland Pty Ltd (the Agreement). The Agreement was approved by employees on 27 August 2013. The notice of representational rights was issued to employees on 22 July 2013.

[2] On 6 September 2013 I wrote to Kindaland Pty Ltd (the applicant) outlining a number of concerns. On 11 September 2013 the applicant responded and provided further information which satisfied my concerns relating to missing information in the application.

[3] In the letter mentioned above I also raised concerns about the applicant’s notice of representational rights which does not comply with s.174 of the Fair Work Act 2009 (the Act).

[4] Section 174(1A) of the Act provides that:

“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.”

[5] Further, s.174(3) requires that the content of a notice to advise employees of a default bargaining representation position be as follows:

“If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.”

[6] Regulation 2.05 of the Fair Work Regulations 2009 provides that:

“For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[7] The Act does not permit an alteration to the notice provided in Schedule 2.1 (except as provided for in Schedule 2.1).

[8] The notice of employee representational rights issued by the applicant to employees in this matter did not conform with Schedule 2.1

[9] In Otswald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union 1 a Full Bench held that:

“ . . . properly construed, in the broader context of the Act, s.188(1)(b) of the Act requires the giving of notice of employee representational rights 21 days prior to a request to approve an enterprise agreement under s.181 in the terms required by s.174 of the Act, which includes advice of default representation in s.174(3). The notice given in this case, which omitted the information to employees required by s.174(3) was not a notice as required by s.188(1)(b).”

[10] The Commission must be satisfied that the employees were not asked to approve an enterprise agreement until 21 days after the last notice of representational rights is given. 2

[11] In the present circumstances, it is clear that the notice of representational rights provided to employees was not a notice of representational rights as required by the Act.

[12] As no notice of the prescribed kind was provided to employees, the applicant did not comply with s.181(2) and therefore the application for approval of the agreement cannot be granted. The application is therefore dismissed.

DEPUTY PRESIDENT

 1   [2012] FWAFB 9512 at paragraph 88.

 2   ss.188(a)(ii) and 181(2).

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