PHA Resources (NSW) Pty Ltd

[2013] FWC 7002

[2013] FWC 7002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PHA Resources (NSW) Pty Ltd
(AG2013/8744)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 SEPTEMBER 2013

Application for approval of the PHA Resources (NSW) Pty Ltd Enterprise Agreement.

[1] PHA Resources (NSW) Pty Ltd (PHA) applied for approval of the PHA Resources (NSW) Pty Ltd Enterprise Agreement (the Agreement) on 26 August 2013.

[2] On 3 September 2013, I wrote to PHA advising that I had some issues with some clauses in the Agreement.

[3] I also advised that s.174 of the Fair Work Act 2009 (the Act) provides that a Notice of Representational Rights (the Notice) must not contain any other content other than the prescribed content and drew PHA’s attention to my decisions in Shape Shopfitters Pty Ltd 1 and Maxitrans Pty Ltd.2

[4] The Notice contained the following additional information:

“Mr Sam Al Mir will be the Company’s nominated bargaining representative.

Would you please consider how you wish to be represented and advise me in writing of the name(s) of your Bargaining Representative as soon as a decision is made?”

[5] Because of this additional content, I advised that I had formed the view that the Agreement could not be approved and invited PHA to make submissions and undertakings in respect of the matters raised in my correspondence.

[6] On 13 September 2013, PHA filed submissions and undertakings. It submitted that the additional information provided on the Notice is reasonable in the circumstances and consistent with the requirements of s.178(2)(a) of the Act. PHA also responded to the issues raised about the content of the Agreement.

[7] While I accept the submissions of the PHA that the additional information was not intend to mislead employees and was provided on advice received by PHA, the Notice provided to employees suggests that employees are required to provide the employer in writing the name of their bargaining representative. Of course, if a union is the employee’s bargaining representative, the employee is not required to provide the employer with written notice.

[8] As I set out in Maxitrans and Shape Shopfitters the inclusion of the additional content means that no notice, as required by the Act, has been provided to employees and therefore the Agreement cannot be approved.

[9] Therefore, the application for approval is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr C Delaney and Mr S Zreika for the Applicant

Hearing details:

2013.

Melbourne to Sydney (by Videolink):

September 13.

 1   [2013] FWC 3161

 2   [2013] FWC 6041

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