Melsteel Pty Ltd
[2015] FWC 53
•6 JANUARY 2015
| [2015] FWC 53 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Melsteel Pty Ltd
(AG2014/10893)
Manufacturing and associated industries | |
COMMISSIONER RYAN | MELBOURNE, 6 JANUARY 2015 |
Application for approval of the Melsteel Pty Ltd Enterprise Agreement 2014 - Reasonable Steps not taken to give employees Notice of Employee Representational Rights - Notice of Employee Representational Rights not in accord with the Act.
[1] Application was made for approval of the Melsteel Pty Ltd Enterprise Agreement 2014 (the Agreement) on 16 December 2014. The Application was accompanied by a Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement.
[2] The F17 specifically seeks information from the employer in relation to the giving of a Notice of Employee Representational Rights to employees. The F17 in the present matter contained the following:
“2.3 Did the employer take all reasonable steps to give notice of their right to be represented by a bargaining representative to each employee who will be covered by the agreement?
[√ ] Yes - please attach a copy of the notice given to employees
[ ] No
Describe the steps that were taken to give employees notice of their right to be represented by a bargaining representative.
Office staff were sent notification by email on 29th October 2014. Notice placed on canteen pinboards and clock off/on machine informing staff that notice of representational rights available in factory office.”
[3] A Notice of Employee Representational Rights was attached to the Form F17.
[4] On 19 December 2014 my Associate emailed the employer and asked the employer to file “the notice and email referred to in question 2.3 of the F17”.
[5] On 23 December 2014 the employer filed with the Commission the following copy of an email to office staff and a notice:
“Melsteel Employees.
Due to some procedural issues and technicalities in the wording of the EBA, we have had to re-start the Bargaining process meaning firstly we need to re-issue the Notice of Employee Representational Rights.
Please see attached.
On receipt of your Representational Rights, a vote on any proposed EBA cannot take place until 21 clear days have expired.
As an employee of Melsteel you have the right to be represented in any negotiations and can therefore appoint a bargaining representative to represent you. You can also nominate yourself.
There is no requirement to nominate a bargaining representative but if you do, it needs to be in writing.
Please hand any nomination to Administration.
Regards,
Damian Holland”
[6] On 23 December 2014 the employer also filed with the Commission the notice which was placed on canteen pinboards and clock on/off machine:
“Notice of Employee Representational Rights
Due to some procedural issues and technicalities in the wording of the EBA, we have had to re-start the Bargaining process meaning firstly we need to re-issue the Notice of Employee Representational Rights.
On receipt of your Representational Rights, a vote on any proposed EBA cannot take place until 21 clear days have expired.
Copies of your Representational Rights can be found in the Administration Office.
As an employee of Melsteel you have the right to be represented in any negotiations and can therefore appoint a bargaining representative to represent you at any negotiations. You can also nominate yourself. There is no requirement to nominate a bargaining representative but if you do, it needs to be in writing.
Please hand your nomination to your supervisor.”
[7] On 31 December 2014 the Commission wrote to Mr Holland in the following terms:
“Dear Mr Holland
The Commission has received the material you filed on 23 December 2014 at my request.
The document titled “Notice of Employee Representational Rights” contains the following sentence:
“Copies of your Representational Rights can be found in the Administration Office.”
Please file with the Commission a copy of whatever constituted the “Representational Rights” which was to be found in the Administration Office.”
[8] The employer responded on 5 January 2015 by emailing a Notice of Employee Representational Rights in the following form:
“29 October 2014
Schedule 2.1 Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174 (6)
Melsteel Pty Ltdgives notice that it is bargaining in relation to an enterprise agreement ‘The Melsteel Pty Ltd Enterprise Agreement 2014 ‘, which is proposed to cover employees of Melsteel Pty Ltd and Melsteel Constructions Pty Ltd employed at the company’s establishments within the State of Victoria.
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:
● the nominal expiry date of your existing agreement has passed; or
● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].”
[9] From the material filed by the employer, it can be seen that a Notice of Employee Representational Rights which complied with s.174 was emailed to office staff on 29 October 2014 and was available for other employees who went to the Administration Office.
[10] Two issues arise in relation to the Notice of Employee Representational Rights in this matter. Firstly, has the employer complied with the requirements of s.173(1) of the Act. Secondly, does the notice which was given to employees meet the content and form requirements of s.174 of the Act.
[11] Section 173(1) provides as follows:
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.
[12] What constitutes “all reasonable steps” was considered by a Full Bench in NTEIU v UNSW 1and I will follow that decision.
[13] In the present matter a Notice of Employee Representational Rights which met the content and form requirements of s.174 of the Act (hereinafter referred to as a “s.174 Notice”) was available to employees but only if they went to the Administration Office to sight it or collect a copy of it. From the information provided by the employer it is not clear whether there was a copy of the s.174 Notice for employees to sight or whether a copy of the s.174 Notice was available for each employee who went to the Administration Office.
[14] What is clear is that employees had clear access to the notice identified in paragraph 6 above and which was prepared by the employer and which was placed on canteen pinboards and on clock off/on machine (hereinafter referred to as the “employer’s Notice”). The employer’s Notice does not meet the requirements for a s.174 Notice. However the employer’s Notice did refer to the s.174 Notice and did advise employees that the s.174 Notice was available in the Administration Office.
[15] The issue in this matter is whether the placement of the employer’s Notice on canteen pinboards and on clock off/on machines was the taking of all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee.
[16] Given that the employer’s Notice was titled “Notice of Employee Representational Rights” and contained a paragraph referring to the right to be represented in negotiations and the process to appoint a bargaining representative, employees could have read the employer’s Notice as meaning that a copy of the employer’s Notice was available for them in the Administration Office.
[17] The very fact that the employer was able to draft its own notice (the employer’s Notice) and ensure that the employer’s Notice was drawn to the attention of employees strongly suggests that the employer could have placed a copy of the s.174 Notice on canteen pinboards and on clock off/on machines. Had the employer done this then the Commission considers that that would have been the taking of a reasonable step to give notice of the right to be represented by a bargaining representative to each employee.
[18] In the circumstances of the present matter the Commission does not consider that the employer did take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee.
[19] In the present matter the step taken by the employer to have the s.174 Notice available to employees if and only if the employee visited the Administration Office and sought the s.174 Notice is completely insufficient.
[20] The circumstances of the present matter include the context in which the employer posted its employer Notice in places readily accessible to employees whilst at the same time making the s.174 Notice available only on request and at the Administration Office is directly relevant. That context is that the employer sought to have the Commission approve an enterprise agreement made with the same group of employees in matter AG2014/9340 which was filed with the Commission on 13 October 2014 and which was subject to a hearing before me on 22 October 2014. At the conclusion of that hearing the employer discontinued the application for approval of an enterprise agreement. At the hearing in matter AG2014/9340 the Commission raised a number of concerns about the process adopted by the employer to make an enterprise agreement. One particular concern raised by the Commission in that matter was about the Notice of Employee Representational Rights issued by the employer.
[21] Amendments to the Act which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) states as follows:
“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.”
[22] Schedule 2.1 of the Fair Work Regulations sets out the terms of a Notice as follows:
“Schedule 2.1 Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174 (6)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low-paid authorisation applies — include:]
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.
[If a low-paid authorisation applies to the agreement — include:]
Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.
[if the employee is covered by an individual agreement-based transitional instrument — include:]
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:
● the nominal expiry date of your existing agreement has passed; or
● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].”
[23] The s.174 Notice available to employees at the Administration Office meets the form and content requirements of Schedule 2.1 of the Regulations.
[24] The issue in the present matter is whether the issuing of the employer’s Notice forms part of or effectively substitutes for the s.174 Notice which was available to employees if they visited the Administration Office.
[25] There is no doubt that the employer’s Notice fails to meet the content and form required by s.174 for a notice of employee representational rights. From the material provided by the employer in this matter it is reasonable to conclude that the employer’s Notice constituted the effective notice to employees of their right to be represented in bargaining for an enterprise agreement. Therefore as the employer’s Notice did not meet the requirements of s.174 the employer has failed to meet the requirements of s.173 of the Act.
[26] The Commission has also considered an alternative way of considering the fact that the employer issued its employer’s Notice together with the s.174 Notice. Whilst both notices were to be found in separate places the two notices constitute a single exercise in notifying employees of their representational rights. Thus the employer would have failed to meet the requirements of s.174 in that the notice to employees contained both the contents of the s.174 Notice and the contents of the employers Notice. As s.174(1A)(b) makes clear a s.174 Notice cannot contain any other content than that prescribed by the regulations.
[27] The Commission is satisfied that the employer has not complied with the requirement of s.173. Non-compliance with s.173 is not of itself s matter which leads to the Commission refusing to approve the Agreement as neither s.186 nor s.187 require that the Commission be satisfied that the employer has issued a notice of employee representational rights in the form required by s.174 and in the timeframe required by s.173.
[28] However, it is necessary for an employer to issue a valid notice of employee representational rights before the employer is entitled to ask employers to vote for an enterprise agreement, which in turn leads to employees making an agreement by genuinely voting to approve the agreement.
[29] The Commission cannot be satisfied that the agreement has been genuinely agreed to by employees, as required by s.186(2)(a), in circumstances where the employer was not entitled to ask employees to vote for the agreement because the employer failed to comply with s.173.
[30] The application in this matter is therefore dismissed.
COMMISSIONER
1 [2011] FWAFB 5163, at [7] to [18].
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