Riverland Oilseeds Pty Ltd T/A GrainCorp Oilseeds

[2014] FWC 1096

[2014] FWC 1096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Riverland Oilseeds Pty Ltd T/A GrainCorp Oilseeds
(AG2013/12207)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 13 FEBRUARY 2014

Application for approval of the Riverland Oilseeds Pty Ltd Numurkah Site and National Union of Workers Enterprise Agreement 2013 - 2016 - Notice of Employee Representational Rights - application dismissed.

[1] An application has been made by Riverland Oilseeds Pty Ltd T/A GrainCorp Oilseeds (Applicant) for approval of an enterprise agreement known as the Riverland Oilseeds Pty Ltd Numurkah Site and National Union of Workers Enterprise Agreement 2013 - 2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer’s Declaration in Support of the Application for Approval was made by Mr Samuel Tainsh, a Director of the Applicant. Attached to that Declaration was a Notice of Employee Representational Rights (NERR) that had been given to the employees of the Applicant on 27 March 2013.

[3] 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).”

[4] The NERR attached to the Employer’s Declaration is inconsistent with s.174(1A)(a) of the Act in that it in that it includes the following content which is in addition to that prescribed by the Fair Work Regulations:

“The Company is required to provide you with this document 14 days prior to the commencement of the negotiation of the agreement Riverland Oilseeds Pty Ltd Enterprise Agreement 2013.”

and

“Please note the company reserves the right to request the appointed bargaining representatives select a “Leader” for the negotiation period. This is in the event of a large number of bargaining representatives are appointed, potentially creating an unmanageable negotiation process.

If you would like to nominate a bargaining representative to act on your behalf please complete the attached form and submit to Dave Tarquini by 5.00pm on 18 April 2013.”

[5] I wrote to the parties on 7 February 2014 to ascertain that the NERR provided with the application was the NERR given to the employees. On 12 February 2014 this was confirmed in an email from Ms Sue Salmon, the Human Resources Manager of the Applicant.

[6] As the requirements of s.174(1A)(a) have not been complied with, I cannot be satisfied that employees have genuinely agreed to the enterprise agreement. Accordingly, I am not satisfied that the requirements of s.186 of the Act have been satisfied.

[7] The application for approval of the Agreement is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR547760>