Platinum ER Pty Ltd T/A Platinum Employee Relations
[2014] FWC 6643
•22 SEPTEMBER 2014
| [2014] FWC 6643 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Platinum ER Pty Ltd T/A Platinum Employee Relations
(AG2014/7287)
COMMISSIONER RYAN | MELBOURNE, 22 SEPTEMBER 2014 |
Application for approval of the Newform Steel Pty Ltd 2014 EBA - agreement not approved - non compliant notice of employee representational rights.
[1] On 28 August 2014 an application was filed by Platinum ER Pty Ltd T/A Platinum Employee Relations for approval of the Newform Steel Pty Ltd 2014 EBA. The Applicant was the bargaining representative for the employer, Newform Steel Pty Ltd.
[2] The application in this matter was accompanied by the 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 relevant employees. The Notice of Employee Representational Rights was as follows:
“12th June 2014
[Employee Name]
[Employee Address]
Dear [Insert Name]
Notice of employee representational rights
Fair Work Act 2009, subsection 174 (6)
NewForm Steel Fabrications Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement NewForm Steel Fabrications Pty Ltd Enterprise Bargaining Agreement 2014 which is proposed to cover employees that are employed by the business.
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 Australia 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?
NuForm Steel Fabrications Pty Ltd has appointed Michael Corrigan of Platinum Employee Relations to assist us with Enterprise Bargaining. The Contacts for Enterprise Bargaining at this stage will be Greg Cole 0433 558 832 or Michael Corrigan 1 300 571 090.
Yours faithfully
Gregory Cole
Director”
[3] A question arises as to whether the Notice of Employee Representational Rights issued by the employer complies with the requirements of the Act and the Regulations.
[4] Section 174 of the Act provides as follows:
“174 Content and form of notice of employee representational rights
Application of this section
(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.
Notice requirements
(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.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before the FWC that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low paid authorisation is in operation
(4) If a low paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”
[5] The Fair Work Regulations contain Reg. 2.05 which is as follows:
“Notice of employee representational rights--prescribed form
For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”
[6] Schedule 2.1 to the Fair Work Regulations is 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].”
[7] There is a very clear disconnection between the Act and the Regulations.
[8] Section 174(1A) specifies that the notice must be in the form specified by the Regulations and there is no s.174(6) in the Act. However, Reg 2.05 identifies that it is making a provision for a Notice of Employee Representational Rights as required by s.174(6). The Regulations do not specify a Notice of Employee Representational Rights for the purposes of s.174(1A).
[9] The Fair Work Act 2009 was amended by the Fair Work Amendment Act 2012 (Act No 174, 2012) and in particular s.174 of the 2009 Act was amended by Items 7, 8 and 9 of Part 5 of Schedule 4 of the amending Act as follows:
“Part 5 -- Notice of employee representational rights
7 Section 174 (heading)
After “ Content “, insert “ and form “.
8 After subsection 174(1)
Insert:
Notice requirements
(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.
9 Subsection 174(6)
Repeal the subsection.”
[10] It would appear that after the Fair Work Act2009 was amended in 2012 someone forgot to amend Reg 2.05 of the Regulations to reflect the amendments to s.174 of the Act. Nevertheless the Regulations do provide in Schedule 2.1 a form of the Notice of Employee Representational Rights and thus the requirements of s.174(1A) can be met.
[11] In the present matter my Associate emailed the Applicant on 5 September 2014 advising the Applicant, inter alia, as follows:
“The Notice of Employee Representational Rights (the Notice) filed in this matter does not meet the content and form requirements of s.174(1A) of the Fair Work Act. Specifically, the contact details at the end of the Notice do not include information regarding the Fair Work Commission as required by the Regulations.”
[12] The Applicant was given until 16 September 2014 to respond to the Commission’s email.
[13] On 19 September 2014 the Applicant responded by letter and, inter alia, said:
“1. Section 174(1A) of the Act provides that the notice of employee representational rights must be in the form and contain the content prescribed by the Regulations.
The Content prescribe by the regulations has not been deviated from the regulation’s or the prescribed form as it contains the employer as Greg Cole, also the regulations allow you to appoint at bargaining agent and the name used was Michael Corrigan.
2. Notice to bargain at the bottom of the template contains the following:
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative
Our notice contained the following:
NuForm Steel Fabrications Pty Ltd has appointed Michael Corrigan of Platinum Employee Relations to assist us with Enterprise Bargaining. The Contacts for Enterprise Bargaining at this stage will be Greg Cole 0433 558 832 or Michael Corrigan 1 300 571 090
3. The full bench decision.
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.
We did not modify the content to the extent where it changed the terms or the meaning of the Notice to Bargain form.
Please find the below the meaning of Bargaining representatives extracted from the Fair Work Commission Web site.
The following are bargaining representatives:
• an employer who would be covered by the agreement
• any union who has a member that would be covered by the agreement (unless the member has specified in writing that he or she does not wish to be represented by the union)
• any union that has applied for a low paid authorisation that relates to the agreement
• any person specified in writing as their bargaining representative by either an employer or employee who would be covered by the agreement.
The changes to form still have the same content and meaning, the word employer has been replaced with Greg Cole, if you went to New From they employees would understand that meaning and would not see a deviation. Again with Bargain Representatives the name Michael Corrigan does not change nor move away from the intent.”
[14] The Applicant’s response focuses on the wrong issue. Replacing the words “your employer, bargaining representative” with the actual name and contact number of the employer and the employer’s bargaining representative appears to conform with the requirements of s.174(1A). However the Notice of Employee Representational Rights as issued by the employer in this matter has removed any reference to contact with the Fair Work Commission. Specifically the reference to the Fair Work Commission website and the Fair Work Commission infoline have been removed from the Notice of Employee Representational Rights.
[15] When an employee receives the Notice of Employee Representational Rights the employee may need further information about the bargaining process and the role and selection of bargaining representatives. Whilst an employee may be comfortable with seeking this information from their employer or their employer’s bargaining representative employees need to have the ability to get independent advice. The very fact that the Regulations specify the contact details for the Fair Work Commission in the Notice of Employee Representational Rights is not a matter than can be ignored by an employer.
[16] In the present matter the removal from the “Questions” part of the Notice of Employee Representational Rights any reference to the Fair Work Commission does in my view constitute a significant alteration to the contents of the Notice of Employee Representational Rights.
[17] The Notice of Employee Representational Rights issued by the employer in this matter does not comply with the requirements of s.174(1A).
[18] The application in this matter must be dismissed.
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