Seymour College Inc

[2016] FWC 147

[2016] FWC 147

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Seymour College Inc
(AG2015/7713)

COMMISSIONER LEE MELBOURNE, 8 JANUARY 2016

Application for approval of the Seymour College Inc Enterprise Agreement 2015 - application dismissed.

[1] On 17 December 2015, Seymour College Inc (the Applicant) applied to the Fair Work Commission (the Commission) under section 185 of the Fair Work Act 2009 (the Act) for the approval of the Seymour College Inc Enterprise Agreement 2015 (the Agreement).

[2] I had a number of concerns about the pre-approval process for the Agreement. In particular, I was concerned with the Notice of Employee Representational Rights (NERR) and the information provided on that Notice. Correspondence was forwarded to the Applicant setting out my concerns. The response to the correspondence did not satisfy my concerns and subsequently I listed the matter for hearing.

[3] On 4 January 2016, I held a video hearing and dismissed the application ex tempore. What follows are my written reasons for making that Decision.

[4] This is an application for approval of a single enterprise agreement of the Seymour College Incorporated Enterprise Agreement 2015. I have had the benefit of submissions from the parties before me today. Having considered those submissions I am in a position to announce my decision in the matter and I will now do so.

[5] The background of this matter is that an application for approval of this agreement was lodged, and when it was lodged a concern was identified with the notice of employee representational rights that was issued to employees who were to be covered by the agreement. Correspondence was forwarded to the applicant indicating the concerns of the Fair Work Commission and it referred to two matters of concern; Firstly, that the website referred to under the question heading of the notice of employee representational rights, referred to rather than the website referred to in the schedule 2.1, which is the Fair Work Ombudsman’s website, and also raised a concern about whether or not additional material was included in the coverage aspect of the notice. That is, while the notice set out the employees that would be covered by the agreement, it also included additional material also referring to those employees who would be excluded and therefore not covered by the agreement.

[6] I will deal with the issue of what I will call the “website issue” first. Mr Manos was granted permission to appear for the applicant. He has taken me through the legal principles associated with the objects of the giving of the notice of employee representational rights. Mr Manos has referred me to Full Bench decisions in this matter that deal with these issues: Peabody Moorvale Pty Ltd v CFMEU 1 (the Peabody decision) and the decision in the AMOU v Harbour City Ferries Pty Ltd and others2(the AMOU decision).

[7] The import of the submissions from Mr Manos, as I understood them, was that consistent with the established principles of statutory construction and considering the observations of the Full Bench in the AMOU decision, that if the notice is deficient by way of what might be considered a trifling error, that this should not be a barrier to the agreement being approved despite the operation of s.174(1A). Rather, that there is a capacity, once the FWC is satisfied that it is a trifling error and it passes that test, that there is a discretion for the Commission to be satisfied that the notice complies with the requirements of the Fair Work Act.

[8] The IEU, Independent Education Union, appeared in the matter today and made some submissions. They opposed that submission of Mr Manos. The essence of their opposition was quite simply that the notice that was issued directed people to the wrong website. I should mention the IEU generally oppose the approval of the agreement and have filed an F18 notice, which sets out other matters of other reasons for opposition for the approval of the agreement, but it is not necessary for me to deal with those other issues at this point.

[9] Mr Manos took me through the law to be applied in this matter, as I have already referred to, and I generally agree with his summary of the legislative requirement. I will briefly re-state the relevant provisions. Section 186(2)(a) requires, in order for the Commission to approve an agreement that:

“The Commission must be satisfied that if the agreement is not a greenfields agreement, the agreement has been genuinely agreed to by the employees covered by the agreement.”

[10] Section 188 sets out when employees have genuinely agreed and it makes clear that:

“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the Commission is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement.”

[11] Subsection (ii) sets out:

“Subsection 181(2) which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given.”

[12] That takes us to s.181(2) which says that:

“Employers may request employees to approve a proposed enterprise agreement.”

and sets out at (2):

“The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.”

[13] It follows that any notice given must be a valid notice and there is no contest on that point from Mr Manos. The requirements for the providing of the notice are in s.173(1)

[14] Section 173(1) provides that:

“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 representation to each employee who:

(a) will be covered by the agreement; and

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

[15] The content of the notice is dealt with in s.174. Mr Manos correctly pointed out that this section has been amended with effect from 1 January 2013 to include ss.(1A) which provides that:

“The notice must;

(a) contain the content prescribed by the regulations; and
(b) not contain any other contents; and
(c) be in the form prescribed by the regulations.”

[16] The statutory construction of that provision was dealt with extensively in the Peabody decision and indeed was referred to by the Fair Work Commission in its initial correspondence to the applicant.

[17] Just quoting again from the Peabody decision, it was stated at 46 to 47:

“In our view section 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.”

Taking into account the considerations identified in Project Blue Sky we have concluded that the legislative purpose of section 174(1A) is to invalidate any notice which modifies either the content or form of the notice template provided in schedule 2.1 of the regulations. We now turn to the facts of this case to determine whether the notice given by Peabody complies with schedule 2.1.”

[18] My consideration in this matter is as follows. The Peabody decision to which I have just referred remains the leading authority on the issues in contention or the issue in contention, and I will follow it and that will not be of any great surprise. The Peabody decision when one looks at the paragraphs to which I have just referred, was clear that there is no scope to modify the notice of employee representational rights beyond what is provided in the schedule. Their decision on that point was abundantly clear.

[19] I have considered the submissions of Mr Manos as to the change being a trifling one, and if I am satisfied with that, that there is a capacity to be satisfied that the notice is a valid notice. In my view it is clear that the notice that was issued, in referring to Fair Work Australia, while that provides, as was put by Mr Manos, a direct link back to the Fair Work Commission, it continues to be the wrong website. The website that Parliament intended be referred to in the notice was the Fair Work Ombudsman website. It is not necessary to speculate as to why the Parliament did so. While one might contemplate the reasons for them doing so, the reality is that they have done just that and any notice that is issued would need to conform with that intention.

[20] I note that part of the decision in the AMOU case that I was referred to by Mr Manos, and particularly in paragraph 38 where in that judgment the Full Bench said as follows:

“We accept that when an NERR contains a minor typographical error there may remain some room for judgment by a Commission member as to whether it renders the notice invalid. We do not need to consider this possibility further in this appeal. For the reasons we have given the omission here was not minor or significant.”

[21] Mr Manos rightly made the concession that the quoted observation from the AMOU decision was obiter, but they are interesting observations by a Full Bench and need to be considered. I agree with the views expressed by the Full Bench in the AMOU case that there may be some room for judgment by a Commission member as to whether a minor typographical error would render a notice invalid. However, I do not think that in this case, the reference to a completely different website, which takes one who is referring to the notice to a completely different institution with a completely different charter as to what its role and responsibilities are in the scheme of the workplace legislation, is a typographical error. Nor do I think that it is a trifling matter.

[22] As I said earlier, the Parliament was clear that the Fair Work Ombudsman website was to be referred to in the notice of employee representational rights. The Peabody decision made it clear that one is not to depart from the form and content of the notice. It follows that the notice that was given in this matter by virtue of the reference to the website, being the FWA website alone, is not a valid notice and therefore it is not a notice that is contemplated by s.173, and therefore a notice as contemplated by s.173 has not in fact been given to employees.

[23] It follows from that that s.181(2) has not been complied with, as a valid notice was not given, and also follows that I cannot be satisfied that the agreement is genuinely agreed, as no notice under s.188(2) was provided. I therefore cannot be satisfied that the agreement is genuinely agreed to by the employees covered by the agreement, as I am required to under s.186(2)(a). As I am not satisfied on that point, I cannot approve the agreement and the application for approval is dismissed.

[24] It is not necessary for me to deal with the other matters but I will note that I think there is an arguable case, that was persuasively set out by Mr Manos, that the coverage aspect of the notice in this case does comply with the legislation. The Full Bench in the AMOU decision make the point out that the Act does not specify the way in which coverage is to be specified. When one follows the approach contemplated by the Full Bench in the AMOU decision, I think it is strongly arguable that the approach taken in the context of the facts around this particular matter including considering the way coverage has been described in this agreement, may well be satisfactory. However there is no need for me to express a concluded view on that point.

[25] The application is dismissed for the reasons that I have given and that concludes the hearing in the matter. I should say for completeness, there is no need for me to express a view on the other matters of objection that were raised by the IEU in the circumstances.

COMMISSIONER

Appearances:

A. Manos of Counsel for Seymour College Inc.

F. Bernardi of the Independent Education Union of Australia.

Hearing details:

2016.

Melbourne-Adelaide (video hearing)

January 4.

 1   [2014 FWCFB 2042 (2014) 242 IR 210

 2   [2015] FWCFB 3337

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