Noungbat Pty Ltd, Trustee for Rub Massage Service Trust T/A Rub Massage

[2020] FWC 927

[2020] FWC 927

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Noungbat Pty Ltd, Trustee for Rub Massage Service Trust T/A Rub Massage
(AG2019/5109)

COMMISSIONER PLATT ADELAIDE, 21 FEBRUARY 2020

Application for approval of the Rub Massage Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Rub Massage Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Noungbat Pty Ltd, Trustee for Rub Massage Service Trust T/A Rub Massage (the Applicant or Noungbat). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 17 January 2020.

[3] On 24 January 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The copy of the Notice of Employee Representational Rights (NERR) which was attached to the Form F17 Employer’s Statutory Declaration in Support of an Enterprise Agreement was an exact duplicate of the NERR template contained in the Fair Work Regulations 2009 (the Regulations) and had not been completed. I note that the Form F17 was witnessed by a person who held the qualification of ‘Diploma of Remedial Massage’ and thus was not an effective Statutory Declaration.

[5] Further information was provided on 31 January 2020 by the Applicant which included a Statutory Declaration which contained the NERR that was distributed. This appeared to be a cut and paste from another document. On 3 February 2020, I sought a copy of the actual NERR which was distributed. This was provided on 5 February 2020 and differed from both versions of the NERR previously provided.

[6] The NERR is reproduced below:

“Hi guys,

Finally we have an enterprise agreement for you to have a look at and eventually vote upon with regard working conditions at Rub Massage. Now begins what we call the 'bargaining period'.

In our last conversations I outlined that it has a few very structured and yet simple steps:

1. Nominate either yourself or someone else to vote for you. That's what the notification in blue is below. (most people vote for themselves unless they have very poor English or a disability and then they can request a translator or representative)

Fair Work Act 2009, subsection 174(1A)

Noungbat Pty Ltd trading as Rub Massage gives notice that it is bargaining in relation to an enterprise agreement (Rub Massage Enterprise Agreement ) which is proposed to cover employees that perform massage services at Rub Massage sites in Adelaide.

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years.  To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.

1. Sit down with me and I will take you through the document step by step and for you to ask any questions (I will hit you up a time in the next week) - it's very similar to our other work contract.

2. Spend some time with it yourself and continue to ask any questions - I am free anytime you want to.

3. Eventually vote on 23rd December. (via phone txt - a simple YES or NO - this will be to an anonymous trusted human)

All you have to do today is...

Let me know if you are representing yourself or getting someone else to do via return email.

I will be in touch for a catch up soon,

Have a great Tuesday :)”

[7] The NERR contained text in addition to the template provided in the Regulations and raised a concern about its compliance with s.174 of the Act (also noting the provisions of s.188(2)). A hearing was conducted to deal with this topic on 19 February 2020. Ms Krollig appeared with Ms Koehler, a Director of Noungbat.

[8] Ms Krollig of Business SA on behalf of Noungbat provided a submission in support of its contention that the NERR complied with the requirements of s.173 and s.174 of the Act, and in so far as it did not, that the error was a minor procedural or technical error, that the employees would not have been disadvantaged by the error and that I should exercise my discretion under s.188(2) of the Act.

[9] At the hearing, Ms Krollig reiterated her submissions and contended that as all of the employees covered by the Agreement (3) had voted in support of the Agreement it was an indication that the employees did not suffer disadvantage. Ms Krollig contended that the error was consistent with the minor errors considered in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics and Others 1 and I should exercise my discretion under s.188(2) of the Act.

Consideration

[10] This NERR was distributed by email from Ms Koehler on 26 November 2019 at 3.08pm to three persons. The email was in colour. The middle section of the email which contains most of the words in the template NERR was in a different blue coloured font.

[11] I note that the title of the NERR did not contain the words ‘Schedule 2.1 – Notice of employee representational rights’ as per regulation 2.05.

[12] I also note that the preamble at paragraph 1 appears to suggest that the document is about nominating a person to vote on their behalf. This is not correct. One of the key purposes of the NERR is to advise an employee of their entitlement to appoint a bargaining representative. The sentence in brackets could be interpreted as there is no need to request a representative unless the employee has poor English or a disability. These additions have the potential to colour an employee’s interpretation of the NERR.

[13] The NERR also contained additional words at the end of the document. These appear to refer to the opportunity to review the proposed Agreement and details of the vote. Whilst they are not misleading, they further complicate the NERR and detract from the focus of the document.

[14] I am not persuaded by Noungbat’s submission that I should ignore the additional words.

[15] There is no evidence before me as to the understanding of the employees who received the NERR. The fact that all the employees supported the approval of the Agreement is not evidence that they understood that they could have appointed a bargaining representative.

[16] Whilst there was no intent by Noungbat, the departure from the standard text of the NERR is considerable and had the capacity to impact on its interpretation and detract from the key messages.

[17] I am not persuaded by Noungbat’s submissions that the departure from the NERR was a minor procedural or technical error concerning s.173 or s.174 of the Act and that the employees were not likely to have been disadvantaged by the error, taking into account the decision in Huntsman. 2

[18] Unfortunately, this error is fatal to the Application.

[19] The Application for the approval of the Agreement is dismissed.

COMMISSIONER

Appearances:

Ms L.Krollig of Business SA on behalf of the Applicant.

Hearing details:

2020.

Adelaide:

February 19.

Printed by authority of the Commonwealth Government Printer

<PR716910>

 1   [2019] FWCB 318

 2   Ibid