[2017] FWC 6270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NewCold Melbourne Pty Ltd and Another
(AG2017/1782, AG2017/1784)

COMMISSIONER BISSETT

MELBOURNE, 28 NOVEMBER 2017

Applications for approval - NewCold Melbourne Pty Ltd 2017 EBA - NewCold Melbourne No.2 Pty Ltd 2017 EBA - applications dismissed.

[1] NewCold Melbourne Pty Ltd and NewCold Melbourne No.2 Pty Ltd (the Applicants) have each made application for approval respectively of the NewCold Melbourne Pty Ltd 2017 EBA and the NewCold Melbourne No.2 Pty Ltd 2017 EBA (the Agreements) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The applications were made on 19 May 2017 but had been held pending the passage of legislation (Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017)through the Federal Parliament in relation to matters associated with the requirements of the Notice of Employee Representational Rights (NERR).

[2] On 31 May 2017 the Transport Workers’ Union of Australia (TWU) contacted the Fair Work Commission (Commission) and sought access to material filed by the Applicants in support of the application – in particular the Form F16 and Form F17.

[3] On 7 July 2017 the TWU filed a “Form F18 – Statutory declaration of employee organisation in relation to an application for approval for an enterprise agreement” in relation to each Agreement. In that Form F18 the TWU indicated that: it was not a bargaining representative for the Agreements; it did not support approval of the Agreements; it disagreed with one or more of the responses provided by the Applicants in their statutory declarations and did not seek to be covered by the Agreement. Further, the TWU indicated that it wished to be heard in relation to the applications.

[4] On 24 August 2017 the National Union of Workers (NUW) advised the Commission that it had only recently become aware of the two applications. It requested, and was provided with, the Form F16 and Form F17. On 22 September 2017 the NUW filed a Form F18 in relation to each Agreement. The NUW indicated that it was a bargaining representative for each agreement, it agreed with the statutory declaration of the Applicants and it sought to be covered by the Agreements. On 17 November 2017 the NUW sent further correspondence to the Commission in which it indicated that it now opposed the applications for approval and also that it sought to be heard on the applications.

[5] Following a Mention of the applications on 26 September 2017 directions were issued with respect to the request of the TWU to be heard. These directions were subsequently extended to the NUW. The matters were set down for hearing on 20 November 2017.
[6] On 25 October 2017 I sent further correspondence to the Applicants advising that the anticipated legislation had not proceeded and it did not appear that any would in the foreseeable future. In these circumstances the Applicants were asked to indicate if they wished to pursue the applications or if it wished to withdraw the applications.

[7] On 9 November 2017 the Applicants advised that they wished to continue with their applications.

[8] The hearing on 20 November 2017 ultimately dealt with the applications of the TWU and NUW to be heard in relation to the applications and matters associated with the apparent deficiencies in the NERR issued with respect to the Agreements.

Do the NERR comply with the requirements of the FW Act?

[9] I have decided to consider this matter first. If it is that the NERR do not comply with the requirements of the FW Act the Agreements cannot be approved. There is, therefore, nothing on which the TWU and NUW can seek to be heard.

[10] Section 174 of the FW Act, as is relevant to this matter, states:

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

[11] It is apparent from the NERR filed by the Applicants that changes were made to the NERR from that specified in the Fair Work Regulations 2009 (Regulations). The last paragraph of the form prescribed by the Regulations states:

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 on1300 799 675.

[12] The NERR issued by each of the Applicants said, in its closing paragraph:

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either Ray Perry your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on 1300 799 675.

[13] The NERR issued by the Applicants altered that prescribed by the Regulations in that it included the name of a person (the employer, according to the submissions of the Applicants).

[14] In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) 1 (Peabody) the Full Bench of the Commission found:

[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 submissions 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.” 2

[footnote in original]

[15] The Applicants in this matter submit that they have not modified the content “to the extent where it changed the terms or the meaning of the Notice to Bargain form.” 3 They submit that the forms still have the same content and meaning as required and assert that the Applicants’ employees would understand the meaning.

[16] The Applicants rely on the decision of Jessup J in Shop, Distributive and Allied Employees Association v ALDI Foods Pty Ltd and Another, 4 (Aldi) in particular where he observed:

I would make one parting observation. Ex hypothesi, an employer which resorts to s 173 of the FW Act will, in the usual case, be a corporation. Read literally, the injunction in the form in the regulations that an employee who has any questions should “speak to ... your employer” is a challenging one. If, as is contemplated, speaking is involved, one would imagine that the addressee would inevitably be a flesh and blood servant or agent. At least within reasonable bounds, for the employer to have nominated the individual to whom it intends that questions should be addressed would not, in my view, amount to a departure from the prescribed form, even if strict compliance were necessary. Had the Full Bench’s attention been drawn to the issue which the applicant now seeks to agitate, it would not, therefore, have been in error, jurisdictionally, to have read s 174(1A) as permitting the reference to “leader” as used by ALDI on the facts of the present case. 5

[17] In The Maritime Union of Australia v MMA Offshore Logistics Pty Ltd T/A MMA Offshore Logistics & ors 6 (MMA Offshore Logistics) the Full Bench of the Commission considered the decision of the Federal Court in Aldi. The Full Bench concluded that:

[98] In summary no member of the Full Court expressed the view that Peabody was incorrect. Jessup J appears to have been prepared to assume that Peabody was correct for the purpose of his analysis, but stated the obiter opinion (at [49]) that, even if strict compliance with the prescribed form was required, the minor departure in the NERR issued in that case would not be sufficient to invalidate it. Katzmann J concluded expressly that Peabody was correct, and did not agree with Jessup J’s observation at [49]. White J agreed with Jessup J’s analysis of the NERR ground at [39]-[48] (but declined to express agreement with the observation in [49]), and acknowledged the force of Katzmann J’s reasoning concerning the need for strict compliance with the prescribed NERR without deciding the issue. In light of Aldi, we consider that the proper course is to follow Peabody and approach the NERR issue on the basis that a purported NERR which does not strictly comply with the prescribed form in Schedule 2.1 is invalid, and that an enterprise agreement which proceeds on the basis of an invalid NERR is incapable of approval. [underlining added]

[18] I therefore reject the submissions of the Applicants that the decision in Aldi provides any relief from the requirements identified by the Full Bench in Peabody. Aldi did not determine the correctness or otherwise of Peabody and, as the Full Bench in MMA Offshore Logistics, observed the proper course to follow is the approach in Peabody.

[19] It is therefore clear that there is no capacity to deviate from the requirements as to the content of the NERR set out in the Regulations. Section 174(1A) of the FW Act is, as was said in Peabody, “clear and unambiguous”. The notice cannot “contain any other content”. The inclusion of “Ray Perry” is “other content” of the type referred to in s.174(1A)(b) of the FW Act. The NERR issued by each of the Applicants is therefore not in strict compliance with the form prescribed in the Regulations. I have not been persuaded otherwise by any submission made by the Applicants.

[20] The Applicants referred me to some decisions of single members who have approved agreements where there is a slight deviation in the NERR from the requirements set out in the Regulations. On this I would observe that I am not bound by decisions of single members of the Commission but am bound to follow the decisions of the Full Bench in Peabody and MMA Offshore Logistics.

[21] The current requirements of the FW Act and/or the Regulations are not that the meaning of the NERR as issued be understood by the relevant employees. It is that it complies with the Regulations without deviation. The NERR issued by the Applicants in this case do not.

[22] Given the failure of the NERRs to comply with the requirements of the FW Act I cannot be satisfied that the Agreements have been genuinely agreed to.

[23] For this reason the Agreements are not approved.

Other matters

[24] I have reached this conclusion without a consideration of submissions of the NUW or TWU. Having reached my decision I do not need to determine if the NUW and/or TWU should be heard in relation to the applications for approval.

[25] Whilst I have not heard from the Applicants (or any other interested party) as to other aspects of the statutory requirements for approval of the Agreements I would observe that it does seem unusual to have the same group of employees vote on two separate agreements because it is not clear which agreement any of them might be working under.

[26] This raises potential issues about whether the group of employees to be covered by either of the Agreements has been fairly chosen and how employees could know which set of conditions would be relevant to their actual employment at the time they voted – that is, if they genuinely agreed to the Agreement. This, and other matters raised in correspondence with the Applicants in respect of the Agreements which have now not been approved are relevant matters for the Applicants to consider in any future bargaining.

[27] For the reasons given above each of the applications is dismissed.

COMMISSIONER

Appearances:

C. Brooks with M. Corrigan for Newcold Melbourne Pty Ltd.

T. Walton for the Transport Workers’ Union of Australia.

C. Lewis and M. Toner for the National Union of Workers.

Hearing details:

2017.

Melbourne via video link to Sydney:

November 20.

1 [2014] FWCFB 2042.

2 Written submissions on behalf of the Minister 18 February 2014 at [10].

3 Applicants’ submission dated 14 November 2017.

4 (2016) 245 FCR 155

5 Ibid, p.168.

6 [2017] FWCFB 660.

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