Locker Group Pty Ltd

[2012] FWA 7723

[2012] FWA 7723

FAIR WORK AUSTRALIA

DECISION

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

Locker Group Pty Ltd
(AG2012/7701)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 SEPTEMBER 2012

Locker Group (Brisbane) Enterprise Agreement 2011.

Summary: deficiency in employee notice of representational rights - approval requirements

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 20 August 2012 by Locker Group Pty Ltd (“the Applicant”) for the approval of a single-enterprise agreement known as the Locker Group (Brisbane) Enterprise Agreement 2011 (“the Agreement”).

[2] An issue arose in the course of considering the application, at my prompting, as to whether the proposed agreement had met the requirements of s.186 of the Fair Work Act 2009 (“the Act”).

[3] Section 186 of the Act sets out the requirements that must be met in order for me to approve the Agreement. Section 186 of the Act provides relevantly as follows:

186 When FWA 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, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.

(2) FWA 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. (Notations omitted)

[4] Section 186(2)(a) of the Act is a reference to s.188 of the Act, which concerns the circumstances the existence of which Fair Work Australia (“FWA”) must be satisfied in order to conclude that employees have genuinely agreed to an enterprise agreement.

[5] Section 188 of the Act provides 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 FWA 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.

[6] Section 188(a)(ii) of the Act refers to s.181(2) of the Act and concerns the requirement that employees not be requested to approve an agreement until such time as the last notice of employee representational rights has been given.

[7] Section 181(2) of the Act provides as follows:

181 Employers may request employees to approve a proposed enterprise agreement

[...]

(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.

[8] It follows that an agreement cannot be genuinely agreed unless the approval by the employees of the agreement proceeds the giving of a valid notice of employee representational rights to the same employees.

[9] Sections 173 and 174 of the Act provides 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.

174 Content 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.

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 FWA that relates to bargaining for the agreement.

[...]

Regulations may prescribe additional content and form requirements etc.

(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.

[10] Further Regulation 2.05 of the Fair Work Regulations 2009 (“the Regulations”) provides relevantly as follows.

2.05 Notice of employee representational rights — prescribed form

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

[11] As outlined above, s.174(6) of the Act refers to the contents of the notice of employee representational rights. The contents of that notice, in turn, are set out prescriptively, through r.2.05 of the Regulations, at Schedule 2.1 of the Regulations.

[12] In this case, the notice of representational rights provided to employees failed to identify a number of the rights of employees as contained in the notice set out at Schedule 2.1 of the Regulations. Accordingly, s.173(1) of the Act has not been complied with for the reason that an express right to the forms of representation was not conveyed in the notice of employee representational rights given by the Applicant.

[13] Because - in the case currently before me - the notice of employee representational rights given by the Applicant is not compliant with the terms prescribed in Schedule 2.1 of the Regulations, the notice required under s.174(6) of the Act does not exist, or else in effect, the notice as given is not a notice for the Act’s purposes.

[14] Further to this, as the notice of employee representational rights as given is not a notice for the Act’s purposes, the Agreement cannot be said to have been approved in compliance with s.188(a)(ii) of the Act, which is premised upon the giving of a notice of employee representational rights (under s.174(6) of the Act). It follows, further, that because the Agreement has not been approved in the manner required, the Agreement cannot be said to have been genuinely made for the purposes of s.188 of the Act.

[15] Generally then, as a consequence of the above finding, I cannot be satisfied for the purposes of s.186(2)(a) and s.188(a)(ii) of the Act that the Agreement is capable of approval as the requirements set out in s.181(2) of the Act have not been met, owing to the deficiency in the content of the notice of employee representational rights. Consequently, the Agreement before me cannot be said to have been genuinely agreed by the employees whom it purported to cover. On this occasion there was no argument in mitigation or otherwise that might have caused me to adopt any alternative construction to the statutory approval requirements.

[16] Accordingly, the application for approval of the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

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