Patties Foods Ltd - [2014] FWC 6262

[2014] FWC 6262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Patties Foods Ltd
(AG2014/8817)

COMMISSIONER RYAN

MELBOURNE, 9 SEPTEMBER 2014

Application for approval of the Patties Foods Limited Enterprise Agreement - Bairnsdale 2014-2017 - Notice of Employee Representational Rights not in accord with the Act.

[1] Application was made for approval of the Patties Foods Limited Enterprise Agreement - Bairnsdale 2014-2017 (the Agreement) on 29 August 2014. The Application was accompanied by a Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement. Attached to the Form F17 was a copy of the Notice of Employee Representational Rights issued by the employer to the employees. On its face the Notice of Employee Representational Rights did not meet the requirements of the Fair Work Act 2009 (the Act).

[2] On 8 September 2019 my Associate emailed the employer and asked:

“Firstly, can you confirm that the Notice of Employee Representational Rights which has been filed with this application is in precisely the same form as the Notice which was distributed to employees?”

[3] On the same day the employer responded as follows:

“The Notice of Employee Representational Rights filed with the application is in the same form as the notices distributed to employees.”

[4] On the same day my Associate emailed the employer asking the employer to send a copy of the Notice of Employee Representational Rights that was distributed to employees and the employer responded with a copy of the Notice of Employee Representational Rights.

[5] The Notice of Employee Representational Rights sent to the Commission on 8 September 2014 was identical to the one filed with the application.

[6] Amendments to the Act which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) states as follows:

“Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

[7] Schedule 2.1 of the Fair Work Regulations sets out the terms of a Notice as follows:

“Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174 (6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

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 the agreement is not an agreement for which a low-paid authorisation applies — include:]

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.

[If a low-paid authorisation applies to the agreement — include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation 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, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument — include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

● the nominal expiry date of your existing agreement has passed; or

● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

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 on [insert number].”

[8] The Notice issued to employees in relation to the Agreement did not contain the final paragraph of the Notice contained in Schedule 2.1 of the Regulations.

[9] The omission of the last paragraph of the terms of a Notice of Employee Representational Rights as required by Schedule 2.1 of the Regulations is a matter of substance and cannot be overlooked.

[10] The requirements of Schedule 2.1 of the Regulations have not been met and thus there is non-compliance with the requirements of s.174(1A).

[11] Non compliance with s.174(1A) by the employer means that there is no valid enterprise agreement before me.

[12] The application in this matter is therefore dismissed.

Observations on the Content of the Agreement

[13] The following observations may assist the bargaining parties when they restart the process of making an enterprise agreement.

Clause 3 Application

[14] The agreement is intended to cover permanent maintenance employees but not casual maintenance employees. This raises a significant question as to how the Commission could be satisfied that the group of employees who are to be covered by the agreement was fairly chosen.

Clause 7 Definitions

[15] The definition of “immediate family” does not include all of the relationships which are included in the concept of ‘immediate family’ in the Act given that the Act defines ‘immediate family’, ‘spouse’, ‘defacto partner’ and ‘child.’

Clause 10.1 Trainees

Clause 10.1.2 appears to permit the cashing out of annual leave other than in accordance with a term which meets the requirements of s.93 of the Act.

Clause 13 Consultation and Communication

This clause does not meet the requirements of s.205 of the Act.

Clause 15.10.1.2 Part-time employees

[16] The clause does not contain the protection for part-time employees found in clause 12.8 of the Food, Beverage and Tobacco Manufacturing Award 2010, clause 13.8 of the Manufacturing and Associated Industries and Occupations Award 2010 and clause 11.6 of the Clerks - Private Sector Award 2010.

Clause 15.10.3.2 Notice of termination by an employee

[17] The clause contains a provision permitting the employer to make a deduction from an employee’s pay to the benefit of the employer in circumstances which may not be reasonable pursuant to s.326 of the Act.

Clause 16.1 Annual salary instead of agreement provisions (non-Maintenance Employees)

[18] The clause provides an offset arrangement which is expressed so generally and is so lacking in detail that it appears it may not constitute an effective offset provision.

Clause 19.4 Carers Leave

[19] Clause 19.4.1 places a limit on the use of paid carers leave which is not permitted by the Act.

COMMISSIONER

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