New Town Toyota Pty Ltd T/A New Town Toyota

[2014] FWC 7077

[2014] FWC 7077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

New Town Toyota Pty Ltd T/A New Town Toyota
(AG2014/7553)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 OCTOBER 2014

Application for approval of the New Town Toyota remote Site Collective Enterprise Agreement.

[1] New Town Toyota Pty Ltd applied for approval of the New Town Toyota Remote Site Collective Enterprise Agreement. The notice of representational rights filed with the Commission was accompanied by a letter to employees.

[2] That letter advised in part the employees that:

“We intend for discussion to commence in late September 2013. Please find attached to this letter Schedule 2.1 Notice of employee representation rights. You have a right to appoint a bargaining representative and you are required to let us, as your employer, know who you appoint. Any notification to this effect is requested before the discussions commence.”

[3] Attached to the letter was a notice in the form prescribed by the regulations.

[4] Subsection 174(1A) of the Fair Work Act 2009 provides that the notice of representational rights must contain the content, and be in the form, prescribed by the Regulations. Regulation 2.15 of the Fair Work Regulations 2009 states:

“For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[5] Subsection 174(1A) provides that the notice of representational rights must not contain any other content.

[6] In Peabody Moorvale Pty Ltd v CFMEU 1 a Full Bench concluded that:

“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.........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.” 2

[7] The Full Bench then went on to consider whether the notice in that case complied with the Act. In Peabody the notice was accompanied by a bargaining representative nomination form.

[8] In Peabody the Full Bench said:

“s.174(1A) is not to be construed so as to preclude an employer from providing additional material to employees at the same time as the Notice is given. 3 The question of whether a notice accompanied by additional material is in the form prescribed by the Act is a question of fact.4 If the material provided with the notice is misleading or intimidatory then this will be relevant to the assessment of whether the agreement was genuinely agreed to.5“

[9] Mr Gifford on behalf of New Town Toyota submitted that the letter which accompanied the material was not part of the notice. He further submitted that the letter was not misleading.

[10] At the hearing, Mr Tony Coletta, the employee bargaining representative, stated in response to these submissions, that the company frowned upon employees choosing someone from outside to represent them and that the employees were told that they had to elect a representative from the group of employees.

[11] Mr Gifford advised that he was not aware that this was said by anyone in the company. He said that there had been some change of personnel in HR, but the person he had dealt with knew that the selection of the bargaining representative was a free and unencumbered right of employees.

[12] Mr Gifford did not object to Mr Coletta’s statement given from the bar table or seek to question Mr Coletta about the statement. I therefore accept his statement as evidence of what was said to him.

What was the Notice?

[13] Both the letter and notice were given to employees at the same time. The content of the letter and the notice were intended to inform employees of their right to appoint a bargaining representative. The Notice was required to be attached to the employer’s statutory declaration and in this case both the letter and the notice were attached . I find on the material before me that the combined documents were the Notice and consistent with the decision in Peabody because the Notice contains additional informationthe Notice is invalid and therefore the Agreement cannot be approved.

Did the employees’ genuinely agree to the Agreement?

[14] If I am wrong and the notice complied with the Act I find that the agreement was not genuinely agreed 6 to by employees for the following reasons.

[15] In this case the information provided in the accompanying material was inconsistent with the information provided in the notice.

[16] The information in the accompanying letter misrepresented the employees’ rights. Had an employee chosen to be represented by his or her union the letter represented that the employee was required to advise the employer. In addition it suggested that the appointment of a bargaining representative needed to be given before discussions commenced. A union member is not required to notify his or her employer that the union is his or her bargaining representatives and any notice of representation does not have to be given prior to the commencement of bargaining. An employee may chose not to be represented at the commencement of bargaining but subsequently change his or her mind.

[17] When combined with the statement by Mr Coletta that employees were told that they had to elect one of their own as a bargaining representative, I cannot be satisfied that the employees genuinely agreed to the Agreement.

[18] Employees must be free to make a decision about who they chose to represent them. The representative can be a fellow employee or a person from outside the business. Employees are not required to choose one of their own to represent them. If the employees are members of a union then the union is their bargaining representative unless they revoke the union’s status as representative or appoint someone else as the representative. As Mr Gifford said the right to appoint a bargaining representative is a free and unencumbered right.

[19] The Full Bench in Peabody discussed the important role bargaining representatives perform in the negotiation of an agreement. 7

[20] Employees who are told that they must appoint one of their own as a bargaining representative are denied the opportunity to seek the assistance of an external representative who may have more experience with bargaining. Whether the employees would have made such a choice cannot be determined now.

[21] In circumstances where those rights are misrepresented, I cannot be satisfied that the employees genuinely agreed to the Agreement.

[22] Had I not determined that the notice was invalid, I would have provided New Town the opportunity to provide an undertaking as required by s.190 of the Act, before deciding whether to approve the Agreement or not.

[23] However in light of my finding about the invalidity of the notice, the application for approval of the agreement is dismissed.

DEPUTY PRESIDENT

Appearances:

R Gifford for New Town Toyota Pty Ltd

T Coletta for himself

Hearing details:

2014.

Melbourne:

October 1.

 1   [2014] FWCFB 2042

 2   Ibid at [45]-[46]

 3   Ibid at [67]

 4   Ibid at [69]

 5   S.188(a) and (c)

 6   S.188

 7   Peabody op cit at [20]-[21]

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