Maxitrans Pty Ltd - Hallam Panels

[2013] FWC 6041

[2013] FWC 6041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Maxitrans Pty Ltd - Hallam Panels
(AG2013/7889)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 AUGUST 2013

Application for approval of the MaxiTRANS Australia Pty Ltd Enterprise Agreement - Hallam Panels 2013.

[1] Maxitrans Pty Ltd – Hallam Panels Shape Shopfitters Pty Ltd (Maxitrans) lodged an application for approval of the MaxiTRANS Australia Pty Ltd Enterprise Agreement - Hallam Panels 2013 (the Agreement). The Agreement was approved by employees on 24 July 2013. The notice of representational rights was issued to employees on 19 May 2013.

[2] On 12 August 2013 I wrote to Mr Kon Archon, the Applicant’s representative and to Mr John Herbertson from the”Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and said that I was concerned the notice of representational rights did not comply with section 174 of the Fair Work Act 2009 (FW Act) as the notice had a tear slip at the bottom which said as follows:

“If you do wish to appoint yourself or another person as your bargaining representative you can do so by completing this form and giving a copy to the person you appoint and to Peter Kleins.

I,................................................ appoint.................................................... as my bargaining representative.

Signed:............................................. Date:..........................................................”

[3] At the hearing Maxitrans submitted that:

● Mr Archon had made an error with the notice containing the slip as he used an old format document;

● Mr Archon was not up to date with the FW Act changes made in January 2013;

● He didn’t seek to influence people to use slip but issued it in procedure error

● The notice will not be issued in future;

● Negotiations commenced with the AMWU after the issue of the document and there have been many meeting since whereby the agreement was accepted by all parties;

● The Agreement was agreed to by employees and the union;

● Pay rises payable under the Agreement have been paid.

Legislative Framework

[4] Section 174 of the FW Act provides as follows:

“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.”

[5] The Explanatory Memorandum to the Fair Work Amendment Act 2012 said as follows:

“This amendment responds to Panel recommendation 19. The amendment is intended to eliminate confusion about whether employers may modify the content or form of the notice of employee representational rights. The amendment would make clear that the notice must contain only the content prescribed by the regulations and no other content except that which the regulations require an employer to insert or omit.”1

[6] The Fair Work Act Review² discussed the effectiveness of the notice employee representational rights. The review expressly referred to the decision of the Full Bench in Galintel Mills Pty Ltd t/a The Graham Group³ which considered a bargaining notice which had at the bottom of the notice a slip which employees could fill in to appoint a bargaining representative. The Full Bench said as follows:

“[41] There can be no doubt that the notice issued to employees in this case contained every word required by the Regulations. The question is whether the addition of the slip at the bottom of the notice altered its nature such that it ceased to be a valid notice under s173. The Commissioner said that the addition of the slip meant that the notice did not allow employees to determine freely whether to appoint an employee bargaining representative or allow them to appoint a representative at any time while a representative could be appointed.

[42] The AMWU contends that the slip makes completion of the slip mandatory, it is misleading because it infers that representatives can only be appointed in this manner, it is misleading because it infers that the union can only be appointed by returning the slip to the Manufacturing Manager and this constitutes an improper influence over the selection of bargaining representatives. The AMWU contends that the slip omits certain words that could have alleviated the concerns.

[43] On our consideration of the slip these concerns are overstated and do not give rise to the conclusion that the notice is invalid. The slip is set out in full in paragraph [9] above. It is expressed as a request, not a mandatory requirement. It is contained on the same page as the statutory notice which states that a union will be a bargaining representative of union members unless the employee appoints another person. It is otherwise expressed in neutral terms allowing complete freedom to complete it and to appoint any bargaining representative of the employee’s choice.”4

[7] The Review Panel recommended that:

“Section 174 be amended to provide that a bargaining notice must address only the matters specified in that section and the regulations made under it.”

Issues for determination

[8] The issue that needs to be determined is whether the inclusion of the tear of slip means on the notice of representational rights means that no notice has been given.

[9] There is no doubt that the notice of representational rights provided to the employees contains other content and as such it does not comply with section 174(1A).

[10] While I accept the submissions of the Applicant that this was an inadvertent error, it is not a matter that can be resolved by the giving of undertakings.

[11] The Commission must be satisfied that the employees have genuinely agreed to the agreement. “Genuinely agreed”, in s.188 is expressed in terms of satisfaction that particular bargaining provisions within the Act have been complied with (ss.188(a) and (b)) and satisfaction of a more general criterion in s.188(c), rather than in terms of a general consideration of whether in the circumstances of a particular agreement a member is satisfied that the agreement has been genuinely agreed to by the employees.

[12] The Commission must be satisfied that employees were not asked to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given. 5

[13] I have found that the notice of representational rights provided to the employees was not a notice of representational rights as required by the FW Act.

[14] As no notice of the prescribed kind was provided to employees, the employer did not comply with section 181(2) and therefore the agreement cannot be approved. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

K Archon for the Applicant.

J Herbertson for the AMWU.

Hearing details:

2013.

Melbourne:

20 August.

1 Fair Work Amendment Bill 2012 Explanatory Memorandum at [147]

2 Towards more productive and equitable workplaces - An evaluation of the Fair Work Legislation at page 144

3 [2011] FWAFB 6772

4 Ibid at [41]-[43]

 5   Section 188(a)(ii) and section 181(2)

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