OCS Services T/A OCS Services Pty Ltd

[2014] FWC 6358

[2014] FWC 6358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

OCS Services T/A OCS Services Pty Ltd
(AG2014/1676)

COMMISSIONER GREGORY MELBOURNE, 12 SEPTEMBER 2014

Application for approval of the OCS Security Melbourne Airport Car Park Enterprise Agreement 2014.

[1] OCS Services T/A OCS Services Pty Ltd (“OCS”) has made application for approval of a single enterprise agreement known as the OCS Security Melbourne Airport Car Park Enterprise Agreement 2014 (the Agreement.) The application is made under s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] On reviewing the application the Commission raised a concern about the form of the Notice of Employee Representational Rights provided to the employees intended to be covered by the proposed Agreement. This decision deals with that issue.

The Notice

[3] The Notice of Employee Representational Rights provided by OCS to the employees contains some additional words over and above the content of the Notice now prescribed by Regulation 2.05 of the Fair Work Regulations 2009 and contained in Schedule 2.1 to the Regulations. The additional words are:

“OCS Services understands that an employee’s Representative Committee has been formed for the purposes of negotiating this proposed EBA document, and the names of each Committee Member is detailed below.” 1

[4] It then continued to list the names of four employees describing them as “Your bargaining representative.”

[5] However, s.174 of the Act states in part:

“(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.

(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.” 2

[6] A hearing was convened to enable the parties to make submissions about the form of the Notice and whether it complies with the requirements of the Act. Mr Andrew Hocking, the Operations Manager, stated on behalf of OCS the Notice had been based on the form of a Notice used when a previous agreement was negotiated, with some amendments to update relevant contact details. He also indicated the reference to the employee Representative Committee was not intended to mislead, but had been included to make clear to employees that this group had been formed, and to encourage employees to get involved in discussions about the terms of the proposed Agreement.

[7] Mr Howard Smith also appeared on behalf the Transport Workers’ Union. The TWU is a bargaining representative for employees to be covered by the proposed Agreement and has applied to be covered by the Agreement. Mr Smith said the Union supported the approval of the Agreement but understood the Commission had to be satisfied about the form of the Notice.

Consideration

[8] The requirements to do with the form of a Notice of Employee Representational Rights has been considered in detail in the recent Full Bench decision in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union 3. The circumstances in that matter were different to those now before the Commission. The Full Bench was required to consider whether additional documents distributed with a Notice, also formed part of the Notice. However, in the course of the decision the Full Bench went in detail to what is required in giving a valid Notice to employees intended to be covered by a proposed enterprise agreement. It is not intended to restate the Full Bench’s findings in detail, but instead to make reference to some relevant aspects of the decision.

[9] After reviewing the terms of s.174 and subsection (1A), in particular, the Full Bench concluded:

“[16] The word ‘must’ in s.174(1A) is language in mandatory form.” 4

[10] It continued to indicate:

“[18]Subsection 174(1A) uses language in mandatory form and goes to some length to make it clear that there can be no departure from the content or form of the Notice prescribed in the Regulations. As mentioned earlier, s.174(1A) provides that a Notice must contain the prescribed content, must not contain any other content and must be in the form prescribed.

[19]The clear and unambiguous meaning of the words of s.174(1A) is entirely consistent with the context and mischief to which the provision is addressed.

[20]As to the context, the Notice provides employees with important information about the nature of an enterprise agreement and the employees’ right to appoint a bargaining representative to assist them in bargaining for the agreement or in a matter before the Commission about bargaining for the agreement. The Notice sets out the default position for union members, that is, they will be represented by their union if they do not appoint a bargaining representative.” 5

[11] It also concluded:

“[24]The clear and unambiguous meaning of s.174(1A) is entirely consistent with the objects of Part 2-4 of the Act and the important role of bargaining representatives in the negotiation of agreements.

[25]The general objects of the Act are also an important contextual consideration. One of the objects of the Act is ‘enabling fairness and representation at work ... by recognising ... the right to be represented’ (s.3(e)). The adoption of the clear meaning of s.174(1A) is consistent with this statutory objective.” 6

[12] At [33] the Full Bench noted, “The ‘mischief’ Parliament was seeking to address in responding to the Panel’s recommendation and enacting subsection 174(1A) was the past practice of making alterations to the content or form of the Notice.” 7

[13] It concluded (references omitted):

“[45] 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. We note that this does not prevent the employer from recommencing the bargaining process, completing the pre-approval steps (including the giving of valid Notices) and making application to have the resultant enterprise agreement approved by the Commission.

[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.’” 8

[14] I accept OCS’s submissions that the additional words added to the Notice were intended to help, rather than hinder, and there was certainly no intention to mislead. However, at the same time it is possible to construe the additional words as intending to encourage employees to nominate the named bargaining representatives, in preference to any other bargaining representative.

[15] Regardless, given the current provisions contained in s.174, and the decision of the Full Bench in Peabody, I am satisfied OCS has not complied with s.173(1) in terms of giving Notice to the employees proposed to be covered by the Agreement, and therefore notice cannot be said to have been given for the purposes of the 21 day time frame in s.181(2) of the Act. It follows that the Agreement cannot be approved and the application is therefore dismissed.

[16] The views of the Full Bench in Peabody at [45] are referred to again at this point. The Commission’s failure to now approve the Agreement does not prevent OCS from recommencing the bargaining process, completing the pre-approval steps (including the giving of valid Notices), and making application to have the resultant Agreement approved by the Commission.

[17] It is also not necessary, given this decision, to come to any conclusion about the terms of the Agreement and the requirements of the “better off overall” test. However, it can be indicated at this point that the proposed Agreement does not appear to raise any issues in the context of that requirement. However, this will need to be finally determined if and when a further application for approval is made to the Commission.

COMMISSIONER

Appearances:

Mr Andrew Hocking appeared on behalf of the Applicant.

Mr Howard Smith appeared on behalf of the Transport Workers’ Union of Australia.

Hearing details:

2014.

Melbourne:

4 September.

 1   Notice of Employee Representational Rights issued by Applicant to employees on 27 May 2014

 2   Fair Work Act 2009 (Cth) at s.174

 3   [2014] FWCFB 2042

 4   Ibid at [16]

 5   Ibid at [18]-[20]

 6   Ibid at [24]-[25]

 7   Ibid at [33]

 8   Ibid at [45]-[46]

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