Richard Mitchell Removals & Storage Pty Ltd

[2013] FWC 6299

[2013] FWC 6299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Richard Mitchell Removals & Storage Pty Ltd
(AG2013/8004)

COMMISSIONER ROE MELBOURNE, 29 AUGUST 2013

Application for approval of the Richard Mitchell Removals & Storage Pty Ltd Collective Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Richard Mitchell Removals & Storage Pty Ltd Collective Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Richard Mitchell Removals & Storage Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] The application was made on 8 August 2013. I wrote to the employer on 15 and 22 August 2013 outlining a number of concerns. The employer responded on 22 August 2013.

[3] I identified a number of aspects of the content of the Agreement which did not meet the legislative requirements, however, I considered that these matters could be overcome by the provision of suitable undertakings and the employer advised that it was prepared to provide such undertakings.

[4] I also identified problems with the notice of representational rights, that it did not contain the content prescribed by the regulations; it contained content other than that prescribed by the regulations and it was not in the form prescribed by the regulations. For example, the requirement at the bottom of the form distributed that “the company requires that you fill out the section above and return the notice to the Company by 3/6/13 and the Act states that under Section 178 the employee MUST formally notify the Company in writing of who will be representing you during the Bargaining period of the proposed Enterprise Agreement. YOU MUST fill out the details above even if you choose to represent yourself”.  This could be read as overriding the right of an employee not to nominate a representative and to be represented by a union.

[5] Section 174(6) provides that the Regulations may prescribe matters relating to both the content of a Notice of Employee Representational Rights and/or the form of such Notice. Regulation 2.05 provides:

“2.05 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] The Notice in Schedule 2.1 of the Regulations is prescribed and must be used by an employer in order to comply with both sections 173 and 174 of the Act.

[7] The Regulations do not permit the employer to delete sentences or to add any additional comments, restrictions, directions to the words prescribed in Schedule 2.1 of the Regulations except as provided for in Schedule 2.1.

[8] This does not mean that an employer must simply copy Schedule 2.1 and issue it to employees. The very structure of Schedule 2.1 requires the employer to add essential and prescribed information such as the name of the employer and the name of the enterprise agreement and the proposed coverage of the enterprise agreement.

[9] Schedule 2.1 permits an employer to delete up to two paragraphs of the contents of Schedule 2.1 in circumstances where there is no low-paid authorisation or where no employees are covered by an individual agreement-based transitional instrument.

[10] Section 174(1A) of the Act provides that:

“(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.”

[11] The Notice of Employee Representational Rights issued to employees in this matter did not conform to the prescribed form set out in Schedule 2.1 and therefore the employer had not complied with the requirements of s.174 of the Act.

[12] The employer originally sought a hearing to further pursue this matter however following a telephone conversation the employer indicated that they did not wish to make any further submission and understood that I would issue a decision not approving the agreement.

[13] The application is dismissed.

[14] I hope that the employer resumes the process with the issuing of the correct notice and that the matters in respect to the content of the proposed agreement which have been identified are taken into account in the renewed process.

COMMISSIONER

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