Noni B Limited T/A Noni B

[2019] FWC 2132

[2019] FWC 2132

FAIR WORK COMMISSION

DECISION

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

Noni B Limited T/A Noni B
(AG2019/285)

COMMISSIONER CAMBRIDGE SYDNEY, 2 APRIL 2019

Application for approval of the Noni B Group Retail Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Noni B Group Retail Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Noni B Limited (the employer), and it identified the employer’s legal representatives to be Fisher Cartwright Berriman Pty Ltd trading as FCB HR (FCB). The application also identified two other employers covered by the Agreement to be; Pretty Girl Fashion Group and Noni B Holdings Pty Limited. The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 8 February 2019. The application included a Statutory Declaration of Jessica Furolo made on behalf of the employer and dated 6 February 2019 (the Declaration). The Declaration stated that the Agreement was made on 4 February 2019. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] The application identified a Union Bargaining Representative to be the Shop, Distributive and Allied Employees Association (SDA), and an Employee Bargaining Representative to be the Retail and Fast Food Workers Union Incorporated (RAFFWU). However, the application did note that the RAFFWU provided notice of their appointment as a bargaining representative on 31 January 2019, being a date after the ballot for the Agreement had already opened.

[4] On 12 February 2019, the RAFFWU sent an email communication to the “member assist” email address of the Fair Work Commission (the Commission) which in summary, opposed the application for approval of the Agreement, and challenged particular aspects of the terms of the Agreement, and the process which involved the making of the Agreement. On 14 February 2019, the SDA also sent an email communication to the “member assist” email address of the Commission which relevantly indicated that it wished to be heard in relation to the application for approval of the Agreement.

[5] In view of the communications provided by the RAFFWU and the SDA, the matter was listed for Mention and Directions before the Commission on 4 March 2019, at which time the following appearances were recorded;

Mr W O’Donnell solicitor from FCB, appeared for the employer,

Mr D Macken solicitor from AJ Macken & Co. appeared by telephone for the SDA, and

Mr J Cullinan appeared by telephone for the RAFFWU.

[6] At the proceedings held on 4 March 2019, the Commission was satisfied that, for present purposes, the requirements of s. 596 of the Act had been met, and therefore permission was granted for any of the Parties to be represented by lawyers or paid agents. Notwithstanding the issues raised by the RAFFWU, and the foreshadowed opposition to approval of the Agreement by the SDA, the Commission had identified a number of concerns regarding various terms in the Agreement, and, specifically, the Agreement’s apparent non-compliance with the signature requirements established under subsections 185 (2) and 185 (5) of the Act.

[7] Mr Macken on behalf of the SDA, articulated an argument that the issue involving the Agreement’s non-compliance with the signature requirements of s. 185 (2) the Act and the relevant Regulation (Regulation 2.06A) established under the Fair Work Regulations 2009 via s. 185 (5) of the Act, represented a jurisdictional barrier to the application. Mr Macken asserted that the jurisdictional barrier that arose from the Agreement’s non-compliance with the signature requirements meant that the application was invalid, and such invalidity could not be rectified or remedied. Therefore, Mr Macken strongly advocated that this issue involving the alleged invalidity of the application needed to be determined as a preliminary question, and before there could be any potential contemplation of other aspects of the application for approval of the Agreement.

[8] In view of the nature of the jurisdictional objection raised by the SDA, and which involved the alleged invalidity of the application, the Commission issued Directions which required the Parties to file and serve documentary material in support of their respective positions regarding the jurisdictional objection. Subsequently, each of the Parties has provided documentary submissions in support of their respective positions regarding the jurisdictional objection raised by the SDA, and each of the Parties has confirmed that the jurisdictional objection should be determined upon the filed documentary material and without the requirement for any formal Hearing.

[9] The SDA and the RAFFWU made submissions which, in summary, urged the Commission to dismiss the application for approval of the Agreement on the basis that the application was invalid because it was not made in accordance with s. 185 (2) of the Act, and Regulation 2.06A of the Regulations. The invalidity was said to have arisen because the application was not accompanied by a signed copy of the Agreement, that is, the signature page of the Agreement that accompanied the application was only signed by Jessica Furolo and there was no other signature of any representative of the employees covered by the Agreement. Further, it was asserted that the subsequent provision of a signature page of the Agreement that included the signature of an employee covered by the Agreement, was not something that could represent a correction or amendment, nor an irregularity in form or manner which could be waived, by exercise of the discretion provided by s. 586 of the Act.

[10] The employer made submissions which rejected the proposition that the application was invalid and could not be subsequently corrected or amended by the provision of a signature page that complied with s. 185 (2) of the Act and Regulation 2.06A. The employer acknowledged that the application dated 7 February 2019, did not comply with s. 185 (2) (a) of the Act as it was not accompanied by a signed copy of the Agreement. However, the employer submitted that such non-compliance did not invalidate the application but instead represented only an irregularity which could be waived pursuant to s. 586 (b) of the Act by the provision of a substituting signed copy of the Agreement. In this regard, the employer sought to rely upon, inter alia, the Full Bench Decision of the Commission in CEPU v Sustaining Works Pty Ltd  1(Sustaining Works).

[11] The Commission has considered the competing submissions of the Parties made in respect to the jurisdictional objection concerning the signature requirement issue. A significant aspect of the consideration of the jurisdictional issue raised by the SDA and supported by the RAFFWU, has focussed upon the nature and extent of the Commission’s power provided by s. 586 of the Act, to allow a correction or amendment to the Agreement, or waive an irregularity in the form or manner in which the application for approval of the Agreement was made. Section 586 of the Act is in the following terms:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[12] It would appear that as a general proposition, the Commission would have a broad discretion to correct or amend a signature page that formed part of an agreement that accompanied an application for approval made under s. 185 of the Act. In this regard it is relevant to refer to the Full Bench Decision in Mihajlovic v Lifeline Macarthur  2 (Mihajlovic) as support for this proposition. Having particular regard for paragraphs [35] to [41] inclusive of the Decision in Mihajlovic, as a general proposition, the Commission may, pursuant to subsection 586 (a) of the Act, allow for a replacement signatory page as a correction to an agreement document that accompanied an application, and in doing so, pursuant to subsection 586 (b), waive the irregularity identified in the original signatory page.

[13] However, the nature of the purported correction or amendment which in this instance would occur as a result of the substituting signatory page would appear to extend beyond what might reasonably be contemplated to be a correction or amendment. In this instance, the substituting signatory page was not rectifying some defect like the failure to provide the full name and address of the signatory, or absence of any explanation of the authority by which it was signed on behalf of employees. Unlike the defects that were identified in the Sustaining Works Decision, in this case there was simply no signature or any other form of identification of any person signing the Agreement on behalf of employees. Further, this was not a case where there were counterpart signature pages, and one counterpart page had not been included with the application for some reason that was subsequently explained.

[14] Consequently, I doubt that the subsequent provision of a signature page that complied with s. 185 (2) (a) of the Act and Regulation 2.06A in circumstances where there was initially no signature of any representative of the employees covered by the agreement, could represent a correction or amendment. It would seem to be much more than a correction or amendment to introduce a signatory to the Agreement on behalf of employees where previously there was none. Similarly, the initial absence of any signatory on behalf of employees could not objectively be considered to be an irregularity in form or manner in which an application was made. The absence of any signatory on behalf of the employees would seem to be more than an irregularity in form or manner, but instead a fundamental deficiency that would likely render the application invalid.

[15] In circumstances where the employee signatory provided by way of a substituting replacement page to the Agreement has emerged sometime after the Agreement was made, and where initially no employee signatory was provided or anticipated, a disconnection has been created between the signatory and the making of the Agreement. The signing of the Agreement, or any enterprise agreement made under the Act, is more than some perfunctory action of little significance. The Act places some clear significance on the signatory requirements, they are more than technical requirements and are reflective of knowledge, perhaps participation, and involvement in the processes that led to the making of the Agreement. In this instance, the delayed provision of an employee signatory gives an appearance which is inconsistent with the intentions that underpin the legislative requirements for enterprise bargaining. In simple terms, if the Agreement was genuinely agreed and the bargaining occurred in accordance with the Act, there should have been little difficulty getting an employee signatory at some time shortly after it had been made.

[16] Part 2-4 of the Act includes various procedural requirements which must be satisfied before the Commission can approve of an enterprise agreement. One of these procedural requirements is specified by a combination of subsections 185 (2) and 185 (5) of the Act and Regulation 2.06A of the Fair Work Regulations 2009, these provisions relevantly state:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

...

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.”

and

“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”

[17] As can be seen from subsection 185 (2) of the Act, an application for approval of an enterprise agreement must be accompanied by a signed copy of the agreement. Regulation 2.06A stipulates that a copy of an enterprise agreement is a signed copy only if, inter alia, it, that is, the copy of the agreement accompanying the application, includes the full name and address of that person, and an explanation of the person’s authority to sign the agreement.

[18] In this instance, the copy of the Agreement which accompanied the application did not include any signatory on behalf of employees. The absence of any signatory on behalf of employees was not, in the particular circumstances of this case, something that could, or should, be remedied by correction, or amendment, or waiver, pursuant to s. 586 of the Act. Consequently, the application for approval of the Agreement did not comply with the Regulation made under subsection 185 (5) of the Act.

[19] Further, in the particular circumstances of this case, I have decided not to exercise the discretionary power provided by s. 586 of the Act, and therefore the replacement signatory page is not allowed. It is relevant to note that further support for the refusal to correct the signatory page has arisen from the nature and extent of the challenges to the approval of the Agreement raised by the SDA and the RAFFWU. The SDA and the RAFFWU have raised significant concerns with aspects of the terms of the Agreement which are asserted to offend inter alia, the Better Off Overall Test. In addition, challenge has been made to the process which involved the making of the Agreement such that the Agreement was said to have not been genuinely agreed to by the employees as required by s. 188 of the Act.

[20] In these circumstances, I have formed the view that the most practical and efficient means to provide the best prospect for the Parties to establish an agreement which may be far less contentious than the subject of this application, and hopefully capable of timely approval, would involve the re-commencement of negotiations between the Parties.

[21] Unfortunately the application has not been made in accordance with the signature requirements of s. 185 of the Act. In this case, the particular nature of the deficiency with the signature requirement has not been capable of rectification via any application of s. 586 of the Act. Alternatively, the Commission has decided to refuse any correction to the Agreement document. Consequently, the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.

COMMISSIONER

Final written submissions:

Applicant: 18 March and 22 March 2019.

Shop, Distributive and Allied Employees Association: 12 March and 22 March 2019.

Retail and Fast Food Workers Union Incorporated: 18 March 2019.

Printed by authority of the Commonwealth Government Printer

<PR706408>

 1   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Australian Manufacturing Workers Union v Sustaining Works Pty Ltd [2015] FWCFB 4422.

 2   Mr Peter Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070.