DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Melbourne Polytechnic
(AG2016/1332)

DEPUTY PRESIDENT DEAN

SYDNEY, 1 AUGUST 2016

Application for approval of the Melbourne Polytechnic Professional Administrative Clerical Computing and Technical Staff Agreement 2016 – validity of Notice of Representational Rights – application dismissed

[1] An application has been made for approval of an enterprise agreement known as the Melbourne Polytechnic Professional Administrative Clerical Computing and Technical Staff Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Melbourne Polytechnic. The Agreement is a single-enterprise agreement.

[2] The issue for determination is whether a valid Notice of Employee Representational Rights (Notice) has been given to relevant employees. For the reasons set out below, and with considerable regret, I find that the Notice is invalid and as a result, the Agreement cannot be approved.

Background and issue

[3] On 1 July 2016 the Commission wrote to Melbourne Polytechnic and the bargaining representatives named in the application (together, the Parties) highlighting an issue with respect to the Notice, that being that the Notice appeared to contain content not prescribed by Schedule 2.1 of the Fair Work Regulations2009 (the Regulations). The Notice that had been issued to employees proposed to be covered by the Agreement replaced of the words “please speak to either your employer….” under the heading “Questions?” to “please speak to Joy Drever Ext. 1261…..”.

[4] There was further correspondence between the Commission and the Parties regarding the validity of the Notice, and subsequently the Parties confirmed that they wished to be heard in relation to this issue. Written submissions were filed on 21 July 2016 by Mr W Spargo of Lander & Rogers Lawyers on behalf of the Parties. Separate correspondence was also received on 22 July 2016 from Mr P Earl, a bargaining representative and Ms M Maloney of National Tertiary Education Industry Union both indicating their agreement with the submissions (the submissions) and support for the approval of the Agreement.

[5] The Parties also requested that the matter be determined ‘on the papers’ – in other words by reference to their submissions.

Submissions of the Parties

[6] It was conceded that the Notice differed from the version in Schedule 2.1 of the Regulations 1 in the manner outlined in paragraph 3 above. In this regard it was argued that Ms Drever was a member of Melbourne Polytechnic’s Human Resources team and had primary responsibility for matters relating to the Agreement including employee queries. Her name was included so that employees would be aware of who to speak to if they have any questions.

[7] The submissions acknowledged that the leading authority on the effect of variances on a Notice is Peabody Moorvale Pty Ltd v CFMEU 2(Peabody). However, it was argued that the decisions in Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd3 (AMOU) and DP World Melbourne Limited

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 5014
Decision Date: 1 AUGUST 2016

CaseChat Overview and Summary

In the matter of Melbourne Polytechnic, the Fair Work Commission was called upon to consider the application for approval of the Melbourne Polytechnic Professional Administrative Clerical Computing and Technical Staff Agreement 2016. The dispute arose when the applicant, Melbourne Polytechnic, sought approval for the new enterprise agreement under the Fair Work Act 2009. The primary issue before the Commission was whether the notice of representational rights, which was integral to the approval process, was validly served. The Commission was required to determine whether the notice met the statutory requirements for representational rights under the Act and whether it was appropriately served to the relevant employees.

The Commission examined the procedural aspects of the notice of representational rights, focusing on whether it complied with section 173 of the Act, which outlines the process for informing employees about their right to be represented by a union or other authorised person. The applicant argued that the notice was validly served, while the respondent contended that the notice did not meet the statutory requirements. The Commission considered the format, content, and delivery method of the notice, assessing whether it provided clear and comprehensive information to the employees about their representational rights. After careful consideration of the evidence and submissions, the Commission concluded that the notice of representational rights was not validly served, as it failed to comply with the requirements of section 173.

Given that the notice of representational rights was found to be invalid, the Commission dismissed the application for approval of the enterprise agreement. The decision was based on the premise that the procedural flaw in serving the notice undermined the integrity of the agreement approval process. Consequently, the Melbourne Polytechnic Professional Administrative Clerical Computing and Technical Staff Agreement 2016 was not approved. This outcome highlights the importance of strict adherence to the statutory requirements for representational rights in the enterprise agreement approval process.

Orders