Melbourne Polytechnic

[2016] FWC 5014

[2016] FWC 5014

FAIR WORK COMMISSION

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 Limited4 supported the proposition that the Commission had a discretion to find a Notice that deviated from Schedule 2.1 valid in circumstances where the deviation was “minor, insignificant and immaterial”.

[8] It was contended that the mere inclusion of Ms Drever’s name and contact number did not change the intent or effect of the language in the version of the Notice prescribed by the Regulations and indeed was more helpful than simply using the word ‘employer’.

[9] It was also argued that there were good reasons for finding the Notice valid, including the difficulties likely to be experienced by the Applicant if it has to recommence the bargaining process, and the delay in the terms of the Agreement taking effect, including delay to pay increases.

The legal framework

[10] Section 174(1A) of the Act sets out the requirements of content and form of the Notice as follows:

“(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.”

[11] The issue of compliance with s.174(1A) has been considered in detail in Peabody where the Full Bench of the Commission held that the content and form of the Notice cannot be modified or that the Notice becomes invalid. The Full Bench said at paragraphs [45]-[47]:

“[45] The consequence of failing to give a Notice which complies with the content and form requirements of s.174(1A) is that the Commission cannot approve the enterprise agreement. We note that this does not prevent the employer from recommencing the bargaining process, completing the pre-approval steps (including the giving of valid Notices) and making application to have the resultant enterprise agreement approved by the Commission.

[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 submission 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 s174(1A) is to invalidate any Notice which modifies either the content or form of the Notice template provided in Sch 2.1 of the Regulations …”

[12] I find that the Notice in this case does not conform with s.174(1A)(a) of the Act.

Consideration of submissions

[13] Although I accept Mr Spargo’s submission that the inclusion of Mr Drever’s name and contact number was intended to be helpful, I am not satisfied that the deviation is a typographic or insignificant error such as to render it compliant with s.174(1A) and therefore valid. In this context, I respectfully agree with the observation made by the Full Bench in AMOU that even minor and insignificant departures from the prescribed notice would not be in compliance applying a strict reading of s.174(1A). 5

[14] I turn now to deal with the submissions that there are good reasons to find the Notice is valid. These submission included the risk of a substantial delay in the Agreement taking effect, including the pay increases for which it provides. While I have considerable sympathy for the position of the Parties, I do not agree with the submission that there is discretion available to the Commission to waive the requirements of s.174 of the Act. As the Full Bench in AMOU stated at paragraph 39:

“…If the relevant test was substantial compliance with the prescribed notice, or of the Commission had a discretion to accept as valid a [Notice] which did not comply with s.174(1A), regulation 2.05 and schedule 2.1, these submission would all have merit…”

[15] There is no need for me to consider whether the Parties “genuinely agreed” in accordance with s.188 given my finding that the Notice is invalid. A finding under that section could not cure the invalidity.

Finding

[16] Consistently with Peabody, I find that the Notice is invalid and therefore no Notice as required by the Act was given. The failure to issue a complying Notice means that the application for approval of the Agreement must fail. Accordingly the application for approval is dismissed.

DEPUTY PRESIDENT

 1   See paragraph 10 of the submissions.

 2   [2014] FWCFB 2042.

 3   [2015] FWCFB 3337.

 4   [2016] FWC 386.

 5   [2015] FWCFB 3337 at para 21.

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