[2015] FWC 4050 [Note: An appeal pursuant to s.604 (C2015/4657) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

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

Methodist Ladies' College
(AG2014/10956 and AG2015/2377)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 16 JUNE 2015

Application for approval of the Methodist Ladies' College Teachers' Agreement 2015 - 2017 and the Methodist Ladies' College Operations Staff Agreement 2015-2017 - Notice of Employee Representational Rights - applications dismissed.

[1] Applications have been made by the Methodist Ladies’ College (the Applicant) for the approval of two enterprise agreements, the Methodist Ladies’ College Teachers’ Agreement 2015-2017 (AG2014/10956) and the Methodist Ladies’ College Operations Staff Agreement 2015-2017 (AG2015/2377) (together the Agreements). The applications were made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreements are single-enterprise agreements.

Background

[2] The Notices of Employee Representational Rights (NoERR) that had been given to employees on 4 June 2014 in respect of the Agreements were submitted with the applications. In both cases the NoERR was a one page document which also included a Nomination Form for employees to use to nominate a bargaining representative to represent them in the negotiations for the relevant agreement.

[3] Section 174 of the 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.

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 the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in operation

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a)…

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

AGLC: Methodist Ladies' College [2015] FWC 4050
Case: [2015] FWC 4050
Decision Date: 16 JUNE 2015

CaseChat Overview and Summary

The Methodist Ladies' College, an independent private school, applied for approval of two enterprise agreements, one for teachers and one for operations staff, with the Fair Work Commission. The applicants were represented by a union, which had provided notice of employee representational rights. The respondents were the teachers and operations staff, who were not represented by a union. The dispute was heard in the Fair Work Commission.

The legal issues before the commission were whether the agreements met the requirements of the Fair Work Act 2009 and whether the notice of employee representational rights was valid. The commission had to consider whether the agreements were in the best interests of the employees, whether they provided for fair and reasonable terms and conditions, and whether they complied with the procedural requirements of the Act. The commission also had to determine whether the notice of employee representational rights was valid and whether the employees had the right to be represented by a union.

The commission found that the agreements did not meet the requirements of the Act. The commission was concerned that the agreements did not provide for fair and reasonable terms and conditions for the employees, particularly in relation to pay and conditions for casual employees. The commission also found that the notice of employee representational rights was not valid as it did not provide sufficient information about the union and its role in the agreement process. The commission dismissed the applications for approval of the agreements.

The Fair Work Commission dismissed the applications for approval of the Methodist Ladies' College Teachers' Agreement 2015-2017 and the Methodist Ladies' College Operations Staff Agreement 2015-2017. The commission found that the agreements did not provide for fair and reasonable terms and conditions for the employees and that the notice of employee representational rights was not valid. The college was ordered to pay the costs of the applications.

Orders