Light Industries Laundry Pty Ltd T/A Sunfresh Linen

[2017] FWC 1703

[2017] FWC 1703

FAIR WORK COMMISSION

DECISION

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

Light Industries Laundry Pty Ltd T/A Sunfresh Linen
(AG2016/4070)

COMMISSIONER SPENCER BRISBANE, 24 MARCH 2017

Application for approval of the Sunfresh Linen Enterprise Agreement 2016 – preliminary issue of whether the Applicant re-commenced bargaining.

[1] This Decision relates to an application made pursuant to section 185 of the Fair Work Act 2009 (the Act) by Light Industries Laundry Pty Ltd T/A Sunfresh Linen (the Applicant/Sunfresh) for the approval of the Sunfresh Linen Enterprise Agreement 2016 (the Agreement).

[2] The Textile Clothing & Footwear Union of Australia (National Office) (the TCFUA), a bargaining representative listed in the Form 16 Application, raised issues in relation to whether the Agreement met pre-approval statutory requirements and passed the Better-Off Overall Test (BOOT).

[3] The Transport Workers’ Union of Australia (the TWU) also sought to be heard in relation to the application as a bargaining representative. The Applicant objected on the basis that they argued that the TWU had never been a bargaining representative for the Agreement. In this regard a process was agreed upon whereby the TWU provided membership information to the Commission on a confidential basis, and the Applicant provided a list of employees to be covered by the Agreement. The Commission confirmed that the TWU has members whose names appear on the list provided by the Applicant and on the basis of the material provided and the approach agreed to by the parties, confirmed the TWU had standing as bargaining representative for the Agreement and could be recognised as such.

[4] The TCFUA and the TWU each filed a Form F18 – a statutory declaration of employee organisation, in relation to the application, indicating they did not support the approval of the Agreement.

[5] As the objections raised by the Unions related to the issue of the notice of employee representational rights (the NERR), and that the Commission had some concerns around the preapproval steps in the Agreement, the issue of the NERR was dealt with as a preliminary matter. Directions were set on 23 November 2016 for the Applicant to file submissions in relation to the Full Bench Decision of KCL Industries Pty Ltd 1 and the line of associated Decisions, relating to the NERR.

[6] The Applicant was represented by Ms Theresa Moltoni and Mr Patrick Hill of IRIQ. The TCFUA was represented by Ms Jenny Kruschel and the TWU was represented by Ms Margarita Cerrato, Industrial Officer.

[7] All parties have agreed to have the matter decided on the papers.

Submissions and considerations

Applicant

[8] The Applicant submitted that the ‘Notification time’ for the present Agreement arises from a Majority Support Determination, 2 made on, and came into operation on, 22 October 2014.

[9] The Form F17 filed with the application indicated that the Applicant provided a NERR on 13 June 2016, however, the Applicant submitted that the correct date should have been 4 November 2014 instead of 13 June 2016.

[10] The Applicant provided a copy of the NERR provided to employees by 4 November 2014 at Annexure 1 (the First NERR) to their submissions and submitted that this was issued in accordance with the Act and relevant case law.

[11] The Applicant did re-issue the NERR (the Second NERR) on the 13 June 2016, but submitted it was unnecessary to go into detail about the re-issue.

[12] In relation to the Second NERR, the Applicant provided the following extract from Uniline Australia Limited 3 (‘Uniline’):

“[113] …. Artificial though it may be, an employer that discovers it had issued an invalid Notice, would cease bargaining with its employees and would agree to bargain or initiate bargaining afresh thus triggering a notification time and a new period within which a valid Notice may be issued. There is nothing in the Act which compels a conclusion to the contrary, except perhaps in circumstances where a majority support determination has been made. Where an employer initially agreed to bargain for an agreement with a particular scope and later agreed to bargain for an agreement with a broader scope, that agreement to bargain in our view, triggers a notification time and a requirement thereafter to issue a Notice to relevant employees who are to be covered by the broader scope agreement. We do not need, for present purposes to decide whether, having regard to s.173(4) such a Notice needs to give to employees who received a Notice for the proposed agreement with a more limited scope.

[13] The Applicant submitted its representative was appointed as the bargaining agent of Sunfresh in June 2016. At that time, IRIQ recommended that a re-issue of the NERR take place. The following letter extracted is addressed to the TCFU from Ms Moltoni regarding the appointment of IRIQ as the bargaining representative:

“Jenny Kruschel
Vice President
Textile, Clothing and Footwear Union of Australia

Via email: [email protected]

Dear Jenny,

Re: Sunfresh Linen Enterprise Agreement 2016

After almost two years, and the parties remaining far apart on many matter, Sunfresh Linen (‘the Employer’) has decided to ‘reset’ these enterprise agreement negotiations.

As part of this reset the Employer has issued a notice of representational rights (NRR) to its employees. This will capture everyone who will be covered by the agreement and those who were not engaged at the time of the first issue in 2014 will have the opportunity to nominate a bargaining representative.

To provide a fresh outlook and approach the Employer has appointed IRIQ to act as a bargaining agent for the Employer in these negotiations.

Please direct all correspondence accordingly.

The first meeting will be held at 10am on 29 June 2016. At this meeting we ask that you be prepared to produce all of your claims and to be in a position to explain them. All employee representatives will be advised of this.

At the second meeting which we propose to have at 10am on 7 July 2016, we will respond to those claims. Other meetings will be decided as appropriate from then on.

We look forward to progressing this matter in an efficient and timely manner.

Yours sincerely,

Theresa Moltoni
Managing Director
IRIQ Pty Ltd.”

[14] Further, the Applicant submitted there were minor concerns on behalf of the Applicant’s representative regarding the 2014 issue of the NERR. Following this, the Applicant submitted it sent a new NERR to all employees who were to be covered by the enterprise agreement.

[15] The Applicant submitted a draft enterprise agreement was put forward by the TCFUA and was produced as a log of claims during the meeting between the Applicant’s representative and the TCFUA. Bargaining subsequently took place and an agreement was voted on and approved by the workforce (as outlined in correspondence in matter B2016/636).

[16] The Applicant submitted the only change that has been made to this form is the notification time of 10 June 2016, which differs to the date originally filed with the Fair Work Commission.

[17] In relation to the F17 submitted by the Applicant, the Applicant stated all other terms concerning this form have stayed the same, thereby not affecting previous submissions made by the Applicant and Respondent/s to other issues raised.

[18] The Applicant submitted the Respondent raised an issue with the Company name on the NERR. By response, the Applicant submitted that having a trading name as the ‘name of the employer’ fulfils the requirement of the NERR. Alternatively, it is submitted that this is not a material change to the form and content of the NERR. 4

TCFUA

[19] The TCFUA noted in email correspondence dated 30 August 2016, the Applicant’s representative stated that the First NERR ‘was provided to all employees on 3 November 2014. The TCFUA noted that IRIQ was not the Applicant’s appointed bargaining representative at the time of the issuing of the First NERR and that there has been no evidence provided to the Commission verifying the issuing of the First NERR to employees within the 14 day period.

[20] The TCFUA also raised issues with the First NERR that was provided at Annexure 1 to the Applicant’s submissions, in respect of the employer, and the agreement title stated in the First NERR. The TCFUA noted that the First NERR identified ‘Sunfresh Linen’ as the employer, while the Applicant’s F17 identifies that the employing entity as ‘Light Industries Laundry Pty Ltd as Trustee for the Light Industries Trust’ with a trading name of ‘Sunfresh Linen’ and the Agreement provides a different description again of the employer as being ‘Light Industries Laundry Pty Ltd (ABN: 908 466 512 66).

[21] The TCFUA submitted that an accurate description of the employer was an important detail in a NERR, given the myriad legal issues that can impact on employees in circumstances where there is a lack of clarity regarding the actual employing entity, for example, situations involving transfer of employment, transfer of business and related issues and/or insolvency.

[22] With respect to the proposed agreement title described in the First NERR, this is stated as the ‘Sunfresh Linen Collective Agreement’. The TCFUA noted that the agreement, currently before the Commission, is entitled the ‘Sunfresh Linen Enterprise Agreement 2016’.

[23] The TCFUA referred to the following extract from the Decision in DP World Melbourne Limited [2016] FWC 385:

‘I have formed the view that the incorrect date of the title of the Agreement referred to in the NERR is not a matter which represents a material change to the form and content of the NERR. Therefore, the incorrect date in the title of the agreement as referred to in the NERR does not invalidate the NERR.’

[24] The TCFUA submitted that the incorrect name of the agreement in this matter was more significant and substantive than in the DP World case, as the title of the Agreement as named in the First NERR is different from the name of the Agreement subsequently put to a vote of employees and secondly, the name of the Agreement in the First NERR contains no date, whereas the Agreement voted on refers to ‘2016’. The TCFUA submitted that the incorrect name of the agreement, together with the incorrect name of the employer, is significant and substantive enough to invalidate the First NERR.

[25] The TCFUA submitted in accordance with KCL Industries, the Agreement is incapable of approval based on the First NERR.

[26] Concerning the Applicant’s completed F17 sworn on 29 July 2016, the TCFUA submitted the Applicant, from July 2016 onwards has provided three different sets of answers to question 2.8. This included the ‘notification time.’ Accordingly, the TCFUA submitted, these changes seemed to be made by the Applicant in response to the doubts raised by the TWU and the TCFUA regarding the validity of the NERR and the statutory requirements regarding the time period in which a NERR is required to be given to employees. Given this, the TCFUA submitted the multiple changes go to the veracity of the Employer’s answer to question 2.8.

[27] The Commission in the Uniline Australia Limited considered whether an enterprise agreement is capable of being genuinely agreed (as per s.186(2)) where a NRR has been issued more than 14 days after the notification time.

[28] The TCFUA submitted the majority in Uniline Australia Limited ultimately held that absent a valid NRR being issued by the employer to employees within 14 days of the notification time, it could not be satisfied that s.181(2) had been complied with. As a consequence, the Full Bench could not be satisfied that the agreement had been genuinely agreed to in accordance with s.186(2).

[29] The TCFUA submitted that in the Applicant’s submissions dated 23 November 2016, the Applicant in contradiction to what it submitted in September 2016, sought to persuade the Commission that the notification time is ‘10 June 2016’ and that the Second NERR issued to employees on 13 June 2016 was therefore done within the required 14 days. The TCFUA submitted that it rejected the following submissions by the Applicant:

• the Applicant wanted a ‘fresh approach’ to bargaining;



• the Applicant’s representative (IRIQ) was appointed as the bargaining agent for Sunfresh in June 2016;



• IRIQ sent a letter to the TCFUA on 10 June 2016 advising, inter alia, that it has been appointed as bargaining agent for the Employer in these negotiations and that as part of a ‘reset’, a NRR had been issued to employees; and



• a draft enterprise agreement was put forward by the TCFUA and was produced as a log of claims during the meeting between the Applicant’s representative and the TCFUA.

[30] The TCFUA submitted there is nothing in the Fair Work Act which provides that a change in bargaining representative has the consequence of ceasing and recommencing bargaining in the sense contemplated by the Uniline.

[31] The TCFUA submitted after the appointment of IRIQ as bargaining representative, in the period from 10 June 2016 to 18 July 2016, at no stage did IRIQ as bargaining representative for the Applicant advise the TCFUA or the other bargaining representatives that the employer was ceasing and/or recommencing bargaining, including in the letter to the TCFUA of 10 June 2016. Further, the TCFUA submitted the Applicant’s submission did not expressly contend this. It was only at the point (18 July 2016) that the Employer had decided to put out an agreement for a vote that it advised the TCFUA that ‘bargaining has come to an end.’

[32] The TCFUA submitted that the issuing of the Second NERR was done by the Employer without any consultation with the TCFUA or other bargaining representatives. In the TCFUA’s submission, it appeared to have been done as part of the Applicant’s bargaining strategy to ‘encourage’ more employees to appoint themselves as bargaining representatives, with a view to changing the course of the negotiations. The letter by IRIQ to the TCFUA (10 June 2016) illustrated the motivation for the Second NRR as follows:

‘As part of this reset the Employer has issued a notice of representational rights (NRR) to its employees. This will recapture everyone who will be covered by the agreement and those who were not engaged at the time of the first issue in 2014 will have the opportunity to nominate a bargaining representative.’

[33] The TCFUA submitted the issuing of the Second NERR and/or the correspondence from IRIQ to the TCFUA (10 June 2016) is not evidence of negotiations having ceased and/or recommenced as of 10 June 2016.

[34] The Applicant submitted on 24 November 2016 the following:

‘draft enterprise agreement was put forward by the TCFUA and was produced as a log of claims during the meeting between the Applicant’s representative and the TCFUA.’

[35] The TCFUA submitted the above submission is disingenuous. Further, the TCFUA stated the facts are that there had been an exchange of multiple draft documents and draft clauses over the period of 14 months of negotiations prior to the appointment as bargaining representative for the Applicant. The TCFUA submitted it had provided an updated proposed draft agreement to the Applicant on 3 June 2016 and was waiting for the Applicant to provide a response as part of further negotiation meetings. A log claims had been endorsed by TCFUA members almost 2 years before. Accordingly, the TCFUA submitted it is incorrect for the Applicant to imply that because a draft agreement was discussed in a meeting between the Applicant and the TCFUA, this indicated a ‘new’ log claims or new set of negotiations.

[36] The TCFUA submitted that the matters raised by the TWU (in respect of the Applicant’s denial of the TWU being involved in negotiations in June 2016) directly contradicted the Applicant’s implied submission that it ceased, and then recommenced negotiations. The TCFUA submitted it can led evidence that at the bargaining meeting on 15 July 2016, the TWU representative was refused attendance.

[37] It is submitted that none of the matters raised by the Applicant’s submissions dated 24 November 2016 altered the correct legal position in relation to the Sunfresh Agreement, such that:

• the relevant notification date (s. 173(2)) was 22 October 2014 when the Commission issued the Majority Support Determination;



• the Applicant (consistent with s.173(3)) was therefore required to provide a valid NERR to employees no later than 14 days after the notification date for the agreement i.e. 5 November 2016;



• as conceded by the Applicant, the First NRR was invalid as it did not conform to the prescribed form as per Schedule 2.01 of the FW Regulations; and



• the Second NRR issued to some employees on 13 June 2016 was issued outside of the 14 day time limit required under s.173(3).

TWU

[38] The TWU submitted that there were two issues to be determined:

• Was the NERR issued on 3 or 4 November 2014 valid?



• Was it open to the Applicant to re-issue a different NERR on 13 June 2016 without re-commencing bargaining.

[39] The TWU submitted that the First NERR does not contain the correct name of the employer and the "Fair Work Commission lnfoline" phone number is not the Fair Work Commission Info line phone number, but is the number of the Fair Work Ombudsman.

[40] The TWU noted that the Form 17 submitted by the Applicant acknowledges that the First NERR may have been invalid. The TWU submitted it was open to the Commission to find that the First NERR was not valid.

[41] The TWU referred to the following extract from the Decision in Uniline Australia Limited 5 where the majority of the Full Bench observed:

" ... Artificial though it may be, an employer that discovers it had issued an invalid Notice, would cease bargaining with its employees and would agree to bargain or initiate bargaining afresh thus triggering a notification time and a new period within which a valid Notice may be issued” 6

[42] The majority of the Full Bench further stated:

"We would observe in passing that we are not unsympathetic to the position in which an employer or indeed other bargaining representative might find themselves upon discovering that a Notice is not valid. If the legislative provisions provided some discretion about this and other preapproval technical requirements then an examination of the actual impact of any deficiency upon the bargaining process and its outcome might result in the deficiency being disregarded. But that is not the legislative scheme the Commission is required to administer…” 7

NOTE: following two paragraphs of TWU’s submissions NOT really relevant to Uniline matter – to move to where relevant/delete:

[43] The TWU noted that it was contacted by its members subsequent to the corrected NERR being issued on 13 June 2016 to request TWU representation in bargaining meetings. The TWU submitted that their phone calls to the Applicant were not returned and following subsequent phone contact with the Applicant's representative, an offer was made to meet separately with the TWU. The TWU submitted they were specifically refused attendance at the bargaining meeting which took place on 15 July 2016 and were at no stage given the opportunity to represent members in bargaining prior to the proposed Agreement being put out to ballot.

[44] It was submitted by the TWU that the failure of the Applicant to recognize the TWU as the default bargaining representative of its members is inconsistent with good faith bargaining. Pursuant to s.187(2) of the Act, the Commission therefore cannot be satisfied that approving the Agreement "would not be inconsistent with or undermine good faith bargaining".

[45] The TWU submitted that the Applicant relied on the 2016 NERR by claiming it re-set the negotiations. Accordingly, the TWU submitted in relation to this claim, the TWU was denied involvement in negotiation meetings after the issue of the 2016 NERR on the basis that negotiations had been on-going for a period of almost 2 years.

[46] The TWU submitted if bargaining did re-set as claimed by the Applicant then justification for denying the TWU entry to bargaining meetings disappeared. Accordingly, the TWU submitted that negotiations did not re-commence in the manner contemplated in Uniline. The TWU stated bargaining does not re-commence just because a new bargaining representative has commenced or one party to the negotiations has changed one or more of their claims. In this case, the TWU submitted the Applicant’s own view, up until the validity of the 2014 NERR was raised, was that negotiations continued, rather than re-commenced. 

Relevant legislation

[47] This application is made under s.185 of the Act, which provides:

“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 multi-enterprise agreement that 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.
Single-enterprise agreements that are greenfields agreements

(6)  This section does not apply to an agreement made under subsection 182(4).”

[48] If an application is made under s.185 of the Act, the Commission must approve the agreement if satisfied of those matters under ss.186 and 187 of the Act. Section 186 of the Act, relevantly states:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test…

[49] When an Agreement has been genuinely agreed to is dealt with by s.188 of the Act as follows:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[50] Of relevance to this matter, s.181 of the Act states:

“181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[51] The notice referred to in s.181 of the Act, must be a valid notice under the Act such that ss.173 and 174 of the Act are relevant and provide as follows:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.”

“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

(c) be in the form prescribed by the regulations.

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) 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.

Content of notice—bargaining representative if a low paid authorisation is in operation

(4) If a low paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”

Consideration

[52] The first question for determination is: was the 2014 NERR valid?

[53] A Full Bench of the Commission dealt with this specific issue in KCL Industries Pty Ltd 8and the relevant passages are extracted as follows:

“[13] The telephone number of the Fair Work Commission Infoline in the last paragraph is not set out in the form. The number is obtainable from a sample NERR on the Commission’s website, and has at all relevant times been 1300 799 675.

[14] In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union 4, a Full Bench of the Commission determined that:

(1) Subsection 174(1A) established a clear and unambiguous requirement that the form and content of the NERR had to be as set out in the template provided for in the FW Regulations.

(2) There was no capacity to depart from the template in the FW Regulations. The Commission accepted the submission of the Commonwealth Minister for Employment that “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.”

(3) A failure to comply with the form and content requirement in s.174(1A) renders the NERR invalid.

(4) The consequence of failing to give a valid NERR is that the Commission cannot approve any subsequent enterprise agreement that is made.

…

[16] The NERR issued by KCL, on its face, departs from the prescribed form in at least three respects:

(1) The first paragraph is restructured into two separate sentences.

(2) The Fair Work Commission is described as “Fair Work Australia”, which was the name of the Commission prior to 1 January 2013.

(3) In the last paragraph, rather than referring to the Fair Work Commission Infoline, the reference is to the “Fair Work Infoline” with the number “13 13 94”.

[17] The second departure referred to above does not constitute a failure to comply with s.174(1A), for the reasons explained in the Full Bench decision in Serco Australia Pty Limited v United Voice and the Union of Christmas Island Workers 5. The first is, arguably, a triviality with which s.174(1A) might not be concerned. However the third cannot be ignored. The “Fair Work Infoline on 13 13 94” is in fact an entirely different infoline to that operated by this Commission. It is operated by the Fair Work Ombudsman. If the intention had been that the template NERR advise employees of the existence of the Fair Work Ombudsman’s infoline (rather than the Commission’s infoline) as a source of relevant information, the prescribed form in Schedule 2.1 of the FW Regulations would have referred to it.”

[54] The Applicant has conceded⁹ that it was not valid and consistent with the Full Bench in KCl Industries, I find that the 2014 NERR, was not valid. This error alone is not fatal to a bargaining process and is capable of rectification. The Full Bench in Uniline, while noting that it is artificial, has identified that an employer can cease bargaining with its employees and agree to bargain or initiate bargaining afresh. This would have the effect that a new notification time would be triggered under s.173(2)(a) and a valid NERR could be issued within 14 days of that date. The majority decision in Uniline did however note that there is nothing in the Act to indicate a contrary position “except perhaps in circumstances where a majority support determination has been made”.

[55] While a majority support determination is in operation, bargaining is required in the terms required by the Act and cannot simply be ceased unilaterally, as referred to by the majority in its hypothetical scenario in Uniline. 10 When a majority support determination comes into operation, a notification time under s.173(2)(b) is triggered with the effect that the relevant employer is required to give the requisite notices. It is not clear in the Act whether an employer can agree to, or initiate bargaining, over the top of a majority support determination that is in operation. If they cannot, then in circumstances where a defective NERR is given to employees, the course may be that an employer should either seek to have the majority support determination revoked, agreement from all bargaining representatives and employees to cease bargaining to which the majority support determination applied, and agree to or initiate bargaining for the agreement.

[56] In this matter, a majority support determination is in operation. The parties have not addressed this issue in any particular detail such that it is appropriate to determine the issue. For present purposes it is not determinative as the conclusions drawn would not ultimately be changed by the issue, although it is noted that in the circumstances this presents a significant difficulty with the Applicant’s position.

[57] The issue for determination then becomes, has the Applicant ceased bargaining with its employees and agreed to bargain or initiated bargaining afresh and, if so, on what date. In the Applicant’s submissions it is submitted that the second notification time is 10 June 2016. The relevance of this date, according to the Applicant’s submissions, is the sending of a letter from the Applicant’s bargaining representative to the TCFUA titled “Letter to TCFUA – Notice of Appointment”. The Applicant submits that “this letter, and matters raised in matter B2016/636, indicate that the Applicant wanted a fresh approach to its bargaining”¹¹.

[58] To correct the “minor” errors in the 2014 NERR, the Applicant submitted that it sent a new NERR to employees to be covered by the agreement. The amended F17 indicates that the last NERR was given on 13 June 2016.

[59] The Applicant has not submitted that it communicated with the employees to be covered by the agreement regarding the status of bargaining. The only communication that the Applicant relies upon in its submissions is the letter to the TCFUA on 10 June 2016. That communication does not indicate that the Applicant is seeking to cease bargaining and agree to or initiate bargaining. At best, the letter to the TCFUA unilaterally advises that the employer has “decided to ‘reset’” negotiations. The majority support determination issue aside for the moment, I am not satisfied that an employer can “cease” bargaining by writing to one bargaining representative and advising that it has decided to reset bargaining, nor does the correspondence indicate that the employer “agrees to bargain, or initiates bargaining” such that a new notification time was triggered under s.173(2)(a) of the Act. I am not satisfied that the approach adopted by the Applicant in this matter is consistent with the Act or the scenario set out by the majority in Uniline.

[60] While I echo the artificiality of the process adverted to by the majority in Uniline I am unable to find that on the facts as presently before me, that bargaining in respect of the notification time of 22 June 2014 had ceased such that a new notification time was triggered on 10 June 2016. It is a reasonable expectation that an employer would communicate with its employees to specifically and unambiguously state that it is seeking to cease bargaining and immediately agree to or initiate bargaining again. An explanation for this action should be provided to employees and bargaining representations and allow an opportunity for employees to discuss the issue. Here, the employer’s bargaining representative has communicated with one bargaining representative in circumstances where it is not clear before me, that that bargaining representative does in fact represent all employees, in a not insubstantial workforce. Given that the TWU also asserts coverage and representation in respect of some employees, it is most likely that the TCFUA does not represent all employees. The only notification time is therefore 22 June 2014.

[61] Accordingly, based on the material provided, it is concluded that the Applicant has not taken all reasonable steps to give notice of the right to be represented by a bargaining representative as soon as practicable, and not later than 14 days, after the notification time for the Agreement in accordance with s.173 of the Act. In accordance with the majority decision in Uniline it is also arguable that in circumstances where a majority support determination is in operation, an employer cannot cease bargaining unilaterally.

[62] I am unable to be satisfied that the Agreement has been genuinely agreed to in accordance with s.188 of the Act as I am required to be under s.186(2)(a) of the Act in order to approve the Agreement. For the aforementioned reasons, the application for approval of the Sunfresh Linen Enterprise Agreement 2016 must therefore be dismissed.

[63] I Order accordingly.

COMMISSIONER

 1   [2016] FWCFB 3048.

 2   B2014/851, PR556956.

 3   [2016] FWCFB 4969.

 4   Falcon Mining Pty Ltd   [2016] FWC 5315 , DP Asbury.

 5   [2016] FWCFB 4969

 6   [2016] FWCFB 4969 at [113]

 7   [2016] FWCFB 4969 at [120]

 8   [2016] FWCFB 3048

9 Submissions on behalf of the Applicant, 24 November 2016, at paras 7 and 8.

 10   See for example the effect of a majority support determination being in operation in s.230(2)(b) of the Act.

11 Ibid at para 12.

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