Richers Transport Pty Ltd

[2014] FWC 7271

[2014] FWC 7271

FAIR WORK COMMISSION

DECISION

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

Richers Transport Pty Ltd
(AG2014/5741)

COMMISSIONER SPENCER BRISBANE, 15 OCTOBER 2014

Application for approval of the Richers Transport Pty Ltd Enterprise Agreement 2013 - validity of notice of representational rights

[1] An application has been made for approval of an enterprise agreement known as the Richers Transport Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made by Richers Transport Pty Ltd (the Applicant/Employer) pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Richers Transport Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The Agreement proposes to cover three divisions of the Applicant’s employees; highway drivers, depot staff and workshop staff.

[3] The Transport Workers’ Union of Australia (TWU/the Union) has filed a Form 18 Statutory declaration of employee organisation indicating that it disagrees with one or more of the answers given to questions in the Employer’s statutory declaration.

[4] In particular the objection to the approval of the Agreement relates to the validity of the notices of representational rights (Notices) issued by the Applicant on 15 May 2012 and 7 November 2012. The Applicant concedes that notices provided by the Applicant on 30 October 2013 and 26 February 2014 are not relevant notices for the purposes of the Act. This decision relates to the validity of the 2012 Notices.

[5] A copy of the various Notices issued to employees are annexed to the Employer’s F17 statutory declaration of Ms Kirchner. These Notices were issued as follows:

• 2 page document entitled “Memo to: All Depot Staff and Highway Drivers” dated 15 May 2012.



• 2 page document entitled “Memo to All Workshop Staff” dated 7 November 2012.



• 3 page document entitled “Memo to New Employees: Depot staff and Highway Drivers” dated 30 October 2013.



• 3 page document entitled “Memo to New Employees: Depot staff and Highway Drivers” dated 26 February 2014.

[6] On 14 May 2012, it was agreed that bargaining would commence in relation to a new enterprise agreement that would cover highway drivers and depot staff. The Applicant issued a Memo on 16 May 2012 (dated 15 May 2012) to depot staff and highway drivers. The Memo stated as follows:

“Memo to: All Depot Staff and Highway Drivers. 15th May 2012.

ENTERPRISE AGREEMENT:

Our current Collective Agreement which we have in place is due for renewal. Since this Agreement was finalised in 2009, changes to the industrial laws have been made by the current Federal Govt., and all new Agreements must be done as per the provisions of the Fair Work Act.

Once both parties of an agreement, eg: staff & management, have decided that they want to commence a bargaining process, certain steps must be taken within 14 days. The staff meeting that was held on Saturday, 12th May, has determined that the staff in our depots and our highway drivers, who are the employees covered in our current Collective Agreement, now wish to commence negotiating a new Agreement with management.

In order to commence the bargaining process, the management of Richers Transport are required by the Fair Work Act, to issue you with the following notice - Schedule 2.1 - refer below.

It is important that you read the notice below, as it includes information about your rights of representation.

You can represent yourself, or you can appoint someone to represent you. That person can be a union if you are a union member, or it can be another staff member.

You are required to advise the company in writing who you wish to be your representative, even if it is yourself.

I have attached a copy of the 3 different forms that we have made up to assist you with this task.

Form 1. Own/self - you can represent yourself. Form 2. You can appoint another person as your representative. Form 3. Acceptance by a person to be a representative. (If you wish to represent a number of people, you only have to sign one form.)

Extra forms are available from your manager, or our HR office in M/boro. If you need assistance to understand the process further please call me. Please return the forms to your manager or our HR section in M/boro depot asap.

Regards, Judy.”

[7] The following was included on the same page as the Memo:

Schedule 2.1 Notice of employee representational rights (regulation 2.05)

Fair Work Act 2009, subsection 174(6)

Richers Transport gives notice that it is bargaining in relation to an enterprise agreement “Richers Transport Pty Ltd Enterprise Agreement” which is proposed to cover all staff employed in company depots, and our highway drivers.

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 fo the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.

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.

...”

[8] Three forms were attached as a second page to the Memo, which were provided for employees to return, advising the Applicant of their bargaining representative.

[9] In late October 2012, the Applicant sought to include the workshop staff in the proposed agreement that was being negotiated with depot staff and highway drivers.

[10] The Applicant issued a Memo on 8 November 2014 (dated 7 November 2014) to workshop staff. The Memo, schedule 2.1 notice and forms were in similar terms to the May 2012 Notice above.

Legislation

[11] The relevant legislation is set out in ss. 173 and 174 of the Act.

173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.

[12] The legislative requirements for the form and content of Notices of Representational Rights were changed with effect from 1 January 2013. The history to the relevant amendments is detailed in the recent decision of the Full Bench in Peabody Moorvale Pty Ltd v CFMEU 1.

[13] Section 174, as in force until and including 31 December 2012, read as follows:

174 Content of notice of employee representational rights

(1) Application of this section

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.

(2) Content of notice--employee may appoint a bargaining representative

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 FWA that relates to bargaining for the agreement.

(3) Content of notice--default bargaining representative

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.

(4) Content of notice--bargaining representative if a low-paid authorisation is in operation

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).

(5) Content of notice--copy of instrument of appointment to be given

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).

(6) Regulations may prescribe additional content and form requirements etc.

The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.

[14] Section 174(6) provides that the regulation may prescribe other matters relating to the content or form of the notice. At the relevant time, Regulation 2.05 of the Fair Work Regulations 2009 (the Regulations) was as follows:

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.

[15] Schedule 2.1 of the Regulations provided 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 Australia.

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 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 Australia 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 Australia Infoline on [insert number].”

[16] Subsection 174(6) of the Act was repealed, effective 1 January 2013. From 1 January 2013, s.174 of the Act outlines the required content and form of the Notice 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).’

[17] Section 174(1A) provides that a notice of representational rights must contain content, and be in the form, prescribed in the Regulations. Regulation 2.05 of the Fair Work Regulations 2009 (the Regulations) provides that the notice of employee representational rights in Schedule 2.1 is prescribed.

Summary of the Applicant/Employer’s Submissions

[18] The Applicant submitted that it has complied with the obligations under the Act and has given a valid notice of representational rights to employees proposed under the agreement. The Applicant submitted that they did not intend to rely on the October 2013 and February 2014 Notices for the purposes of this application.

[19] Ms Kirchner gave evidence that the Applicant ran two payroll companies; Richers Transport Pty Ltd and Emijay Pty Ltd. Ms Kirchner could not recall the divisions of employees who were being paid by each company in May 2012, but was clear that in May 2012 it was not contemplated that workshop staff would be covered by the proposed agreement.

[20] The Applicant submitted that once a notice has been given in accordance with s.173 and s.174, there is no need for any further notice to be given regardless of the length of the negotiation. For this reason, the Applicant submitted that the notices that were issued post 1 January 2013 are irrelevant because the Applicant complied with their obligations by issuing the two Notices in 2012.

[21] The Applicant submitted that it was clear from the submissions and Ms Kirchner’s evidence that the context within which the negotiations were proceeding was quite important and significant. The Applicant submitted that the context identifies how the Notices were issued, that there was general understanding of the purposes of the Notices and there was nothing that came out in any of the evidence which indicated any lack of understanding or confusion in relation to the process.

[22] The Applicant submitted that a significant factor to be taken into account in respect of the level of understanding of employees who participated in the bargaining process was the heavy union involvement in negotiations both through their onsite delegate and various union officials.

[23] The Applicant submitted that the original scope that was sought to be negotiated included the depot and highway drivers and that Notices were issued within the 14 day timeframe to the relevant employees in those classifications. Ms Kirchner gave evidence that the Notices were attached to employee pay slips in hard copy 2.

[24] The Applicant submitted that when a decision was made to extend the scope of coverage in October 2012, there was a requirement under s.173 of the Act for a further notice to be issued advising the employees within the broadened scope that they were entitled to representation. The Applicant submitted it was unnecessary for a notice to go to all employees because the depot and highways drivers had already received a notice in the appropriate terms in May 2012.

[25] The Applicant submitted that s.181 of the Act contemplates that notices may be given to employees at different times and there is no requirement that all employees be issued with a notice at a particular point.

[26] The Applicant submitted that in the event the Commission is of the view that extended coverage of the agreement ought to have triggered a further notice to all employees within the extended coverage, s.173(4) allows for consideration to be given to the earlier Notice and that given the circumstances of the negotiation, that the delay is not unreasonable. The Applicant referred to the workforce as being “static” for that period in relation to turnover and change of employees.

[27] The Applicant referred to the decision in Galintel Rolling Mills Pty Ltd T/A the Graham Group 3 (Galintel) as the leading case on the content of a notice of representational rights, in which the Full Bench found that that substantial compliance with the content and form of the Notice in Schedule 2.1 was sufficient to comply with the legislative provision.

[28] The Applicant submitted that the 2012 Notices contain the text required by the regulations and further contend that the Schedule 2.1 notices incorporated within the Memos clearly identify the Schedule 2.1 notice as a separate identifiable part of the communication. As such, the Applicant submitted, the Notices are valid Notices for the purposes of the Act.

[29] Ms Kirchner gave evidence that the May 2012 Notice was comprised of three elements; the introductory Memo as the first half of page 1, the Schedule 2.1 notice comprising the rest of page 1 and the suggested forms as page 2. The Applicant submitted that the notice of representational rights (Schedule 2.1) was clearly separate from the Memo, as required by the Act, as the third paragraph of the Memo states that employees are issued with “the following notice - Schedule 2.1 - refer below”.

[30] With respect to the Memo requiring employees to advise if they wanted the TWU to represent them, the Applicant submitted that this was not a reasonable interpretation of the document as the Memo stressed that the employees needed to read the Schedule 2.1 notice, which stated:

“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 status as your representative.”

[31] The Applicant submitted that the Notice is clear and unequivocal and that the Memo referred to the ability of employees to represent them or appoint someone to represent you. The Applicant submitted that it was not mandatory to appoint somebody.

[32] The Applicant submitted that the requirement to advise the company in writing as to who the employee wished to be their representative, even if it is them self, was correct in the circumstance of any employee appointing any person or organisation other than a union. The Applicant submitted that the context in which the Schedule 2.1 notice appears at the bottom clearly identifies specific requirements in relation to unions which could not create any confusion.

[33] Ms Kirchner gave evidence that no one raised any questions or concerns in relation to the requirement to advise the company in writing and that a TWU delegate and various other union officials were involved in the negotiations.

[34] The Applicant submitted that there was no evidence given by the Union as to any confusion by their members or any advice given to their members in relation to these issues.

[35] The Applicant submitted that if the Commission was of the view that the entirety of the document forms the notice of representational rights, then substantial compliance with the legislation at that point in time was effected by the Applicant according to the approach in Galintel. Further, that the contents of the Memo and the forms, if they form part of the notice of representational rights, cannot alter the nature of the Notice which was in part the test in Galintel.

[36] The Applicant highlighted that the Memo itself is in neutral terms and there is nothing there that mandates the signing of a notice of representation form, that the Memos contained all aspects of Schedule 2.1 and accurately describe the requirement for an employee to appoint a bargaining representative.

[37] Ms Kirchner gave evidence that 125 out of 150 employees voted on the agreement 4, and the Applicant submitted that there could be no realistic suggestion that the way in which the Notice was worded was an inhibitor to employee involvement in the bargaining process.

[38] The Applicant referred to the following passage from Galintel to highlight the point that no evidence had been led by the TWU that suggested any confusion:

“Importantly, however, there was no evidence that any of the six employees to be covered by the agreement were mislead into a belief, mis-circumstance, that appointment was mandatory.” 5

[39] The Applicant submitted that :

“...Even if the memo is capable of the interpretation proffered by the TWU, we say that in order to establish in fact misunderstanding or confusion as to the two possible interpretations, that it requires evidence to be given of that confusion. In the absence of that evidence, the Commission ought to accept the evidence of Ms Kirchner, which is the only evidence in relation to the issue, which indicates that there was no confusion and no misunderstanding as to employees.” 6

[40] The Applicant summarised their submissions as follows:

“So, in conclusion we would say that the notices issued in May and November of 2012 both comply in their terms with section 174 as it was at that time, that the timing and the issuing of notices to the relevant employees at that time was also consistent with section 173, that there was no need to provide the November notice to the depot and highway staff because they had previously received a notice, or if there is some possibility of that being the case then the provisions of section 173(4) means that it was not unreasonable for the notice not to be reissued to those employees having regard to the context of the negotiations, the level of involvement and engagement of employees within that process, and the level of communication that was occurring both by employee representatives and the company.” 7

[41] The Applicant clarified in reply that the term Richers Transport incorporates both Richers Transport Pty Ltd and Emijay Pty Ltd and that there is nothing in the Notices which suggest otherwise.

[42] The Applicant also submitted that MSS Security v LHMU 8(relied upon by the Union below) identified a requirement that a notice be given to all employees within the expanded scope but not necessarily that the same notice be given at the same time to all employees within the expanded scope.

[43] The Applicant submitted that the fundamental purpose of the Notice is to identify that employees have a right to be represented and the scope is something which is incidental and to be negotiated as part of the bargaining process.

[44] The Applicant submitted that the Commission should be cautious in applying the principles as in Ostwald Bros Pty Ltd v CFMEU 9, where the whole paragraph relating to union representation was deleted from the notice. The Applicant submitted that this would clearly not be substantial compliance as per Galintel and is not relevant to this case where the content of Schedule 2.1 is replicated in both of the relevant Notices. The Applicant submitted that the specific Notice in context was not misleading at all.

Summary of the TWU/Union’s Submissions

[45] The TWU opposed the approval of the Richers Transport Enterprise Agreement 2013 on the grounds that the Employer did not issue a notice of representational rights in accordance with the requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009.

[46] In particular, the TWU submitted that in circumstances where the scope of the Agreement had been changed by the inclusion of workshop staff, the Employer was obliged to issue a new notice of representational rights to all employees that were to be covered by the agreement. This did not occur.

[47] The TWU further submitted that each employer had an obligation to give notice. Mr Carter submitted as follows:

“...the obligation then is on each employer to give a notice. The application before the Commission involves an agreement that is going to cover Richers Transport Pty Ltd and Emijay Pty Ltd. At the notification time, Richers Transport was obliged to give a notice to its employees, being the depot staff and highway drivers, and Emijay was obliged to give a notice to its employees being some of the workshop staff. So, a question that the Commission has to answer is when was the notification time for this agreement. Commissioner, the proposed agreement only became one that was to cover multiple employers in November 2012.” 10

[48] The TWU submitted that Richers Transport issued a “defective” notice to Emijay and Richers Transport workshop employees in November 2012, but did not issue a notice to depot staff or highway drivers, who had received the Notice in May 2012. The TWU submitted that Richers did not give notice to the depot staff and highway drivers of their right to be represented as a period of almost 6 months was not a reasonable period before the notification time of the agreement. The TWU submitted as follows:

“...So, the question is what is a reasonable period. Is a period of six months or almost six months a reasonable period of time? And in our submission, we would say six months is not a reasonable period of time in circumstances where the scope of the agreement, the whole scope of the agreement had changed, and a whole different employer, another employer, had been added to the mix, that is Emijay Pty Ltd....” 11

[49] With respect to the scope of the coverage of the agreement, the TWU submitted that because no notice was issued that correctly identified the broader scope of the agreement, the 2012 Notices did not meet the requirements of the Act. The TWU submitted as follows:

“...The evidence is that after the Applicant decided to change the scope of the proposed agreement by including workshop staff, all employees who would be covered by the broader scope of the agreement did not receive a notice of representational rights relating to the broader scope of the agreement. No notice was issued to depot staff and highway drivers, and the work staff were merely provided with a notice which incorrectly indicated that the scope of the agreement was limited to staff employed in our workshop. We say that the course of action that should have been adopted once bargaining for an agreement with a broader scope had been decided upon, was for a new notice of representational rights which correctly noted the broader scope to be issued to all depot staff, highway drivers, and workshop staff, and that simply did not occur.” 12

[50] The TWU referred to the Full Bench decision of MSS Security v LHMU, at paragraph [15] as follows:

“[15] Once it is accepted that the scope of a proposed agreement can itself be a matter for bargaining, it follows that the employer's obligation under s.173(1) is to issue a notice of representation rights in relation to a “proposed enterprise agreement” is to issue such a notice to all employees who would be covered by the broader scope of the agreement proposed by the union or the employer as the case may be.” 13

[51] The TWU further submits that the Notices of May and November 2012 did not meet the requirements of the Act and Regulations as in force at that time. It was submitted that the 2012 Notices required that employees advise the company in writing as to who they wished to be their bargaining representative. The TWU submitted that these Notices were meant to convey to the employees that they did not have an option of not appointing a bargaining representative. The TWU argued that this was a mandated requirement inconsistent with the information in Schedule 2.1, which indicated that a union will be a default bargaining representative unless another person is appointed or the union’s status as a representative is revoked.

[52] The TWU submitted that the position prior to 1 January 2013 was that it was generally unwise for an employer to alter or add to the terms of a notice of representational rights because an alteration may alter its nature. However, additions or alterations did not necessarily invalidate a notice.

[53] The TWU submitted that the circumstances of this matter have some similarity to those in Galintel where employees were asked to complete a slip to appoint a bargaining representative. The TWU submitted that a big difference between Galintel and this present matter is that in this case the completion of the slip was not expressed as a request, rather, as a mandatory requirement.

[54] The TWU argued that the Notices would have led employees to believe that the representative had to complete a slip and referred to paragraph [88] of Ostwald, which is as follows:

“[88] Finally, we note that the construction supported by the Appellant would allow the provision of partial information, which would mislead employees as to their rights in relation to bargaining representation. That is clearly evidenced by the notice given in the current matter. The notice is clearly misleading in advising employees of their right to nominate a representative but not advising them of the default representation. Upon reading the notice, an employee who was not accurately informed by other means as to their rights in relation to bargaining representation would be left with the erroneous understanding that in order to be represented in bargaining they would need to nominate a representative, notify the representative in writing and provide a copy of the appointment to the employer.”

[55] Further, the TWU submitted that the high proportion of employees that completed a slip is evidence that employees believed erroneously that the appointment of a bargaining representative was mandatory.

[56] The TWU further submits that as the Notices of October 2013 and February 2014 contain other content they do not comply with section 174(1A) and are invalid. The TWU acknowledged that the Applicant conceded that the Notices issued on 30 October 2013 and 26 February 2014 were not valid notices, however, the TWU raised that while the Applicant believed they were not valid as the Applicant had already issued compliant notices, the TWU submitted that the October 2013 and February 2014 Notices were invalid because they were not given to all employees and because they did not comply with the requirements of s.174(1)(a) of the Act 14.

[57] The TWU sought to rely upon the Full Bench in Peabody Moorvale Pty Ltd v CFMEU 15.

[58] The TWU summarised their arguments against the Notices as follows:

“...We say that if the Commission were to find that the 2012 notices were valid, it would have to overlook a number of significant problems. Those problems include the fact that Emijay never gave any notice to any employee, the fact that the notice that went to all workshop staff came from Richers and not Emijay, the scope identified in the notice to workshop staff was for an agreement that would only cover workshop staff, the notice that was given to highway drivers and depot drivers was for a proposed agreement that would cover only depot staff and drivers and not workshop staff, when the scope of the agreement was changed to include employees of Emijay the drivers and depot staff did not receive a new notice reflecting the broader scope of the agreement, and what should have been done was made clear in the MSS Security matter, all employees to be covered by the broader scope of the agreement should have received a new notice.

Finally, we say there was some serious deficiencies with the actual content of the notice. We say the content of the notice clearly offends section 174(2) as it then was and as it now is. The effect of the notice is to swap a must for a may. We submit that any of these deficiencies taken in isolation are enough to invalidate the notice. However, when they are all considered together, we say that the Commission should be left to no doubt that the 2012 notices are invalid. We say that the applicant[ion] ought be dismissed and that Emijay, who we understand now employs the bulk of the staff who would be covered by this proposed agreement, should be given a new notice that complies with the requirements of the Act as they now are. Those are our submissions, Commissioner.” 16

Consideration

[59] Under s.173, the Applicant must have taken reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement and is employed at the notification time for the agreement.

Content and Form of the Notice

[60] The notice provided to employees must comply with the requirements of s.174, as in effect at the time the notices were provided. The TWU submitted that the content of the Notices offended s.174(2), which is repeated here for ease of reference:

“Content of notice--employee may appoint a bargaining representative

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 FWA that relates to bargaining for the agreement.”

[61] The TWU took issue with the Notices relating to the fact that the Memos required that employees advise the company in writing who they wished to be their representative. While it is not made clear in the Memos that the employees did not have to notify the Applicant if they wished their union to be their bargaining representative, the Notices clearly state:

“...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.”

[62] The Notices provided to depot staff and highway drivers in May 2012 and to workshop staff in November 2012 did contain the information required as per the legislation.

[63] The Applicant submitted that the Schedule 2.1 notices, which were given on the same page as the Memos dated 15 May 2012 and 7 November 2012, were clearly separate from the Memos as the Memos refer to the employees being issued with “the following notice - Schedule 2.1 - refer below”.

[64] Section 174(1A) came into effect on 1 January 2013. There is nothing in the legislation as in force at the time of the May and November 2012 Notices to suggest that other material may not accompany a Notice. However, the TWU submitted that the Memo and the Forms formed part of the Notice.

[65] The amendments to the Fair Work Act 2009 enacted by the Fair Work Amendment Act 2012 make it clear that after 1 January 2013 there is no capacity to depart from the form and content requirements of section 174(1A) of the Act.

[66] The Full Bench in Peabody Moorvale Pty Ltd v CFMEU 17considered whether the particular notice of employee representation rights (in that matter), provided to each employee who would be covered by the Agreement, complied with s.174(1A) of the Act (in force at the time of issuing those notices) and, if the notice did not comply, was it necessarily invalid and of no effect.

[67] The Full Bench held that the notice provided departed from both the form and content prescribed by s.174(1A) and the Regulations and was therefore invalid.

[68] Section 174(1A) is not relevant to this present case, having come into effect on 1 January 2013. However, Peabody considered material which accompanied a notice, which is relevant to the present matter.

[69] It was considered in Peabody that where additional material accompanies a document which contains the content, and is in the form, prescribed in the Regulations, the issue to be determined is what purports to be the notice. This is a question of fact.

[70] The Full Bench held that s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the notice is given to them. However, in the circumstances of the Peabody case, three documents were given to employees stapled together. The three pages were later attached to a statutory declaration as a PDF document. The Full Bench held that in this case the notice was made up of the three pages and as it contained ‘other content’ it did not comply with s.174(1A).

[71] In the present case, the Notices were contained on the same piece of paper as the Memo which was attached to the forms. Given the ruling in Peabody, I consider that the Notice was formed by the Memo, the Schedule 2.1 notice and the attached forms. It is understood that the Notices in the present case would be considered invalid if s.174(1A) applied in this case.

[72] The Applicant and TWU both referred to the decision of Galintel. The Applicant submitted that if the Notices had not complied with s.174 (as it was framed at the time), there was substantial compliance, referring to the Full Bench’s decision that substantial compliance with the content and form of the notice in Schedule 2.1 was sufficient to comply with the legislative provision. The TWU submitted that in Galintel, employees were only requested to return slips, where in this present case, the employer required employees to complete the slip as a mandatory requirement. The Memo states as follows:

“...You are required to advise the company in writing who you wish to be your representative, even if it is yourself. I have attached a copy of the 3 different forms that we have made up to assist you with this task.

...

Please return the forms to your manager or our HR section in M/boro depot asap...”

[73] The slip in Galintel included the following terms 18:

“Please complete the following slip and return the slip to ..”

[74] The Full Bench in Galintel stated as follows:

“[38] Subsection 181(2) provides that the employer request to approve an agreement must not be made until at least 21 days after the day on which the last notice under s173(1) in relation to the agreement is given. The AMWU contends that s181(2) can only be satisfied if a valid Notice of Representational Rights is given. Even though the requirement in s181(2) relates to the required period of time between certain events, we agree that the requirement cannot be satisfied if a notice referred to in s173 is not given. It is therefore necessary to consider whether the employer gave a notice under s173.

[39] The context and purpose of these provisions are important. Imposing a requirement for employers to notify its employees of their rights of representation is obviously seen by the legislature as an essential ingredient of fair bargaining and agreement making under the Act. So too is the notion of employees being free to exercise their choice of representation. In some workplaces employers may be negative or even hostile to union representation. Negotiations may be quite adversarial.

[40] The requirement in s181(2) is that employers advise employees of their rights and allow the specified time for employees to make whatever choice they wish to make. If an employer fails to advise employees of their rights in the manner specified the requirement is not satisfied. But employers are not precluded from other representations provided the statutory advice is given. There is nothing that we can see in the legislation that precludes, for example, an employer from expressing a preference or giving employees advice on representation. If the representations contradict the notice about employee rights then there will be real questions whether a valid notice was in fact given. If the representations are such that they affect the genuineness of any subsequent agreement then section 188(c) will become relevant.

[41] There can be no doubt that the notice issued to employees in this case contained every word required by the Regulations. The question is whether the addition of the slip at the bottom of the notice altered its nature such that it ceased to be a valid notice under s173. The Commissioner said that the addition of the slip meant that the notice did not allow employees to determine freely whether to appoint an employee bargaining representative or allow them to appoint a representative at any time while a representative could be appointed.

[42] The AMWU contends that the slip makes completion of the slip mandatory, it is misleading because it infers that representatives can only be appointed in this manner, it is misleading because it infers that the union can only be appointed by returning the slip to the Manufacturing Manager and this constitutes an improper influence over the selection of bargaining representatives. The AMWU contends that the slip omits certain words that could have alleviated the concerns.

[43] On our consideration of the slip these concerns are overstated and do not give rise to the conclusion that the notice is invalid. The slip is set out in full in paragraph [9] above. It is expressed as a request, not a mandatory requirement. It is contained on the same page as the statutory notice which states that a union will be a bargaining representative of union members unless the employee appoints another person. It is otherwise expressed in neutral terms allowing complete freedom to complete it and to appoint any bargaining representative of the employee’s choice.”

[75] The Memos in the present matter requires employees to advise the employer in writing who the employee wishes to be their representative. The Memo does not state that the forms must be used to do so. I do not consider that the addition of the forms, or a request that the forms be returned to the employer alters the nature of the Notice.

[76] The Memos are compliant with s.174 of the Act as it was at the time they were issued. The TWU submitted that the Notices confused “must” with “may” under s.174(2). However, the phrase “you can represent yourself, or you can appoint someone to represent you” is consistent with s.174(2), that “an employee may appoint a bargaining representative to represent the employee...”. I do not consider that the effect of the Memos was to require all employees to appoint a bargaining representative.

[77] I accept the evidence of Ms Kirchner that little or no confusion was evidenced by employees in relation to the process and that union delegates were involved in the bargaining process. Whilst the Memos do not state explicitly that employees do not have to advise the employer if they are a union member and wish the union to represent them, it is clear in the Notice that the 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”. Taking into account the evidence and documentation, the Notices provided in May and November 2012 were valid notices of representational rights.

Lapse of time between May 2012 and November 2012 Notices

[78] The TWU submits that the notification time for the proposed agreement is November 2012, that being the time when the proposed agreement became one that was able to cover the multiple employers relevant to the operation of this business.

[79] On the material and evidence presented, all employees of Richers Transport Pty Ltd and Emijay Pty Ltd who will be covered by the proposed agreement and were employed at the notification time in November 2012, were provided with a document that was a notice of the right to be represented by a bargaining representative. However, not all of these employees were notified at the same time.

[80] Under s.173(4), an employer is not required to give a notice if the employer has already given a notice within a reasonable time before the notification time. The parties agreed that the lapse of time after providing the initial notice to the depot staff and highway drivers and the notification time for the proposed agreement was just less than 6 months.

[81] The Applicant submitted that the lapse in time was not unreasonable, because of the context of the negotiations, the level of involvement and engagement of employees and the level of communication that was occurring both by employee representatives and the company. The Union argued that six months was not a reasonable period in circumstances where the scope of the agreement had changed and another related employer had been added (Emijay Pty Ltd).

[82] A period of six months where there was ongoing communication in relation to an agreement is reasonable. I am satisfied that s.173(4) operates such that all employees who will be covered by the proposed agreement and were employed at the notification time were given valid notice of their right to be represented by a bargaining representative.

Conclusion

[83] For the aforementioned reasons, the objection to the approval of the Agreement on the grounds that the notices of representational rights issued to employees did not comply with the requirements of the Act and Regulations, is dismissed.

[84] A separate decision for the approval of the Agreement will issue.

[85] I Order Accordingly.

COMMISSIONER

Appearances:

Mr Aspromorgous for the Applicant

Mr Carter for the Transport Workers’ Union of Australia

Hearing details:

Brisbane:

2014

23 July.

 1   [2014] FWCFB 2042.

 2   Transcript, 23 July 2014, Ms Kirchner, PN57

 3   [2011] FWAFB 6772

 4   Affidavit of Ms Judith Anne Kirchner, dated 13 June 2014 at [31]

 5   Galintel at [46]

 6   Transcript, 23 July 2014, Mr Aspromorgous, PN223

 7   Transcript, 23 July 2014, Mr Aspromorgous, PN224

 8   MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union[2010] FWAFB 6519

 9   [2012] FWAFB 9512

 10   Transcript, 23 July 2014, Mr Carter, PN241

 11   Transcript, 23 July 2014, Mr Carter, PN243

 12   Transcript, 23 July 2014, Mr Carter, PN247

 13   [2010] FWAFB 6519 at [15]

 14   Transcript, 23 July 2014, Mr Carter, PN236

 15   [2014] FWCFB 2042

 16   Transcript, 23 July 2014, Mr Carter, PN266-PN267

 17   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042

 18   Galintel at [9]

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