Link Mining Services Pty Ltd

[2017] FWC 3193

[2017] FWC 3193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Link Mining Services Pty Ltd
(AG2017/215)

DEPUTY PRESIDENT ASBURY BRISBANE, 12 JUNE 2017

Application for approval of the Link Mining Services Pty Ltd Blair Athol Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Link Mining Services Pty Ltd Blair Athol Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Link Mining Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Construction, Forestry, Mining and Energy Union (the CFMEU) raised significant concerns with the proposed enterprise agreement, relating to whether the Agreement passes the better off overall test (BOOT) and whether it had been genuinely agreed. Both parties sought to be heard in relation to the approval of the proposed enterprise agreement. The matter was set down for Conference/Hearing on 13 April 2017.

[3] At the Hearing, I advised the Applicant that it appeared the Notice of Employee Representational Rights (the NERR) that was provided to employees contained content that departed from the form prescribed by Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations). The content identified is the addition of the words “Help Line on” in the final paragraph of the notice.

[4] I requested that parties file submissions addressing this issue. In its submission, the Applicant contended that the inclusion of the additional words ought not to render the NERR invalid on the basis that the additional words are capable of being regarded by the Commission as minor and insignificant; the text of the prescribed form in Schedule 2.1 of the Regulations has been followed completely; and the error is capable of being distinguished from those errors which have been found to invalidate notices where in other cases agreements have not been approved.

[5] The content of the notice is dealt with in s.174 of the Act. Section 174(1A) provides that:

“(1A) The notice must:

(a) contain content prescribed by the regulations; and

(b) not contain any other content; and

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

[6] The effect of s.174(1A) of the Act was considered by a five member Full Bench in Peabody Moorvale v CFMEU [2014] FWCFB 2042 (Peabody), which held that:

“[46] 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.”

[47] 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 the 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.” (Emphasis added, Footnotes omitted)

[7] More recently, in Maritime Union of Australia, The v MMA Offshore Logistics Pty Ltd t/a MMA Offshore Logistics and Others [2017] FWCFB 660 (MMA Offshore Logistics), a Full Bench of the Commission considered the validity of a Notice which contained the telephone number of the Fair Work Ombudsman instead of the Fair Work Commission, in the final paragraph.

[8] Regarding the Notice, the Full Bench in that case held that:

“[98]… In light of Aldi, we consider that the proper course is to follow Peabody and approach the NERR issue on the basis that a purported NERR which does not strictly comply with the prescribed form in Schedule 2.1 is invalid, and that an enterprise agreement which proceeds on the basis of an invalid NERR is incapable of approval.

“[104]… That the Commission’s duty is not to approve enterprise agreement where the NERR issued by the Employer does not strictly comply with the current prescribed form in respect of that last paragraph.”

[9] Consistent with Full Bench authority and contrary to the submissions of the Applicant in this case, strict compliance with the prescribed form in Schedule 2.1 of the Regulations is required.

[10] The notice in this case does not comply with the Act as it departs from the form prescribed in Schedule 2.1 of the Regulations, and is therefore invalid. As no valid notice of employee representational rights was given to employees, the Agreement cannot be approved.

[11] The CFMEU has raised other issues which the Union asserts would result in the Commission refusing to approve the Agreement on the basis that it does not pass the BOOT and it was not genuinely agreed. It is not necessary to deal with these issues but I note that they are not without substance.

[12] For the reasons indicated above, I cannot approve the Agreement. The application is dismissed.

DEPUTY PRESIDENT

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