Methodist Ladies' College

[2015] FWC 4050

[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) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”

[4] The Commission wrote to the Applicant on 21 April 2015 in respect of AG2014/10956 and 27 April 2015 in respect of AG2015/2377 advising that the NoERRs provided with the relevant applications appear inconsistent with s.174(1A) of the Act in that they are not in the form prescribed by the Fair Work Regulations 2009 (the Regulations) as they included content other than that prescribed by the Regulations. The Applicant was advised that if the NoERRs provided with the applications were the correct versions, then the Commission would be unable to approve the Agreements.

[5] The Applicant responded on 28 April 2015 in respect of AG2014/10956 submitting that the NoERR is separate from the Nomination Form and that the wording of the NoERR is in accordance with the requirements of the Act. The Applicant further submitted that it did not consider that appending the Nomination Form to the same sheet as the NoERR constitutes a breach of the requirements of the Act. The Applicant responded on 4 May 2015 in respect of AG 2015/2377 in identical terms regarding the NoERR issue.

[6] On 4 May 2015 the Commission responded to the Applicant’s letter of 28 April 2015 regarding AG2014/10956 indicating that it had considered the Applicant’s submission on the issue of the NoERR and, drawing on the Full Bench decision in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union 1 (Peabody), considered that the NoERR did contain additional material. That correspondence further stated that the NoERR was therefore inconsistent with the requirements of the Act. Accordingly, the Commission advised that it was unable to approve the Agreement and sought advice as to how the Applicant wished to proceed.

[7] The Applicant wrote again on 6 May 2015 reiterating its view that the NoERR given to employees in respect of AG2014/10956 was in accordance with the requirements of the Act. In support of this submission, the Applicant referred to extracts from the Full Bench decision in Peabody. Specifically, the Applicant distinguished the circumstances in this case from those in Peabody, submitting that it had explicitly informed staff that they were being sent both the NoERR and the Nomination Form. In doing so, the Applicant relied on the following extract from Peabody:

“[84] We wish to make it clear that the finding we have made in this case as to what constitutes the notice turns on the particular facts in this matter. We repeat our earlier observation (at paragraphs [68] to [70] that s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Where additional material accompanies a document which complies with the form and content of the prescribed Notice the issue to be determined is what purports to be the Notice. This issue will turn on the evidence and particular circumstances of each case.”

[8] The Commission wrote to the Applicant on 11 May 2015 in respect of both applications with the Applicant responding on 15 May 2015 stating, inter alia, that:

“The attachment of additional material being the nomination form for employees does not violate or cause a mischief to the Notice and does not form additional content to the Notice itself, nor does it constitute a modification to the Notice and form of the Notice.”

[9] The response also referred to the email sent to employees by the College regarding the NoERR. The email stated among other things that:

“Attached to this email is the formal Notice of employee representation rights as required by the Fair Work Act. At the bottom of that notice there is a nomination form for you to specify your nominated representative. Please return this by close of business Monday 8 June to myself.”

[10] Following further correspondence from the Commission, the Applicant advised on 21 May 2015 that:

“The College submits that the parties to the Agreements have not raised an objection to the NERR issued by the College.

It is our view that in the circumstances, the Objects of the Act are best served by the approval of the Applications.

The College therefore does not wish to withdraw the applications submitted and awaits the Deputy President’s decision in this regard.”

[11] The Commission subsequently wrote to the Applicant, the Independent Education Union (IEU) and employee bargaining representatives asking whether they wished to be heard in respect of the matter. The Applicant responded on 22 May 2015 advising that it had no further submissions to make, but that if the Commission considered that there was insufficient material before it or that there remains a doubt as to the interpretation of the manner in which sections 173 and 174 of the Act had been applied then it should convene a hearing for the purposes of clarifying these matters. A letter was received from Mr Bill Biffin, the teaching staff representative on the enterprise bargaining committee, on 26 May 2015 stating that teachers were overwhelmingly in favour of the agreement and had not expressed any concerns regarding their representational rights. Two emails were also received on that day from Ms Heather Paterson, a staff representative who took part in the negotiations for the operation staff agreement. The emails had attached to them copies of the NoERR’s email to staff on 4 June 2014. No response was received from the IEU.

Consideration of the issues

[12] The key issue for determination in this matter is whether the Nomination Form is part of the NoERR and is therefore inconsistent with the requirements of s.174(1A) of the Act.

[13] The leading authority in this area is the Full Bench decision in Peabody. In brief, Peabody concerned a situation where the employer had provided its employees with three documents (the first was intended to reflect the form and content of the prescribed Notice in Schedule 2.1 of the Regulations, the second and third were Bargaining Representative Nomination Form – one an ‘Employer Form’ and the other a ‘Nominee Form’). The three documents were stapled together when given to employees and were described in the Form F17 as the NoERR. The Full Bench determined that the three documents together comprised the NoERR and that the NoERR was inconsistent with the requirements of the Act because it included additional content. In its decision, the Full Bench observed:

“[65] In circumstances where additional material accompanies a document that complies with the form and content of Schedule 2.1 a question arises as to how to distinguish between material accompanying a Notice and material which alters the content of the Notice. In the course of oral argument counsel for the Minister addressed this question and submitted:

"... one reads what purports to be the notice, and if what purports to be the notice from start to finish is compliant in form and substance, in our submission, that is it."

[66] We agree with the submissions advanced on behalf of the Minister, in three respects.

[67] First, s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Subsection 174(1A) is directed at the form and content of the Notice. It does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employer from providing employees with a simple covering letter or an offer of interpreter services. Such a construction would also give rise to considerable uncertainty, for example, about whether an employer could merely provide the additional information in a separate envelope to the envelope containing the Notice, or whether the additional information could be provided at the same time or whether the employer would need to wait until a later time, and if so how long should the employer wait.

[68] These problems are avoided if s.174(1A) is interpreted as a means of curing the mischief to which it was directed, namely, ensuring that the actual Notice is not amended in content or form from the template provided in Schedule 2.1 of the Regulations. To the extent that Shape Shopfitters may be said to be inconsistent with our conclusion it is wrong and should not be followed.

[69] Secondly, where additional material accompanies a document which contains the content, and is in the form, prescribed in the Regulations, the issue to be determined is what purports to be the Notice. This is a question of fact.” (Citations not included)

[14] In respect of AG2014/10956, Ms Yvonne Palmer, the Deputy Principal of the Applicant, declared at Item 2.3 of the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement that “The notice of Representational Rights was distributed to all teaching staff by email on 4 June 2014. Prior to this there had been a meeting of all teaching staff where a group of staff had been nominated to lead the negotiations. ...” The Notice was appended to the Form F17. Of note, Ms Palmer did not distinguish between the NoERR and the Nomination Form in her Statutory Declaration. As to AG2015/2377, Mr Peter O’Sullivan, the Director of Corporate Services for the Applicant, made a declaration at Item 2.3 of the Form F17 in almost identical terms to Ms Palmer’s declaration (the key difference being that two sentences which appeared in Ms Palmer’s declaration were not included in Mr O’Sullivan’s declaration).

[15] Further, as noted at paragraph [10] above, the email sent to employees on 4 June 2014 regarding the NoERR stated that “At the bottom of that notice there is a nomination form...” (Underlining added). Contrary to the Applicant’s submissions, the underlined text from that email suggests that the Nomination Form is part of the NoERR. This is reinforced by the formatting of the NoERR, which sees the heading “Schedule 2.1 Notice of employee representational rights” appear in bold text and large font, whereas the words “Nomination Form” are not bolded and are in the same font as the text in the body of the NoERR.

[16] Together, these factors support a finding that there is no distinction between the NoERR and the Nomination Form, i.e. the Nomination Form is part of the NoERR.

Conclusion

[17] For the reasons set out above, I am satisfied that the NoERRs given to employees by the Applicant in respect of the Agreements are inconsistent with s.174(1A) of the Act as they contain content other than that prescribed by the Regulations. Accordingly, I am not satisfied that the requirements of sections 186 and 187 of the Act have been satisfied.

[18] The applications for approval of the Agreements are therefore dismissed.

 1   [2014] FWCFB 2042

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