Signode Packaging Group Pty Ltd
[2014] FWC 672
•29 JANUARY 2014
[2014] FWC 672 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Signode Packaging Group Pty Ltd
(AG2013/10493)
COMMISSIONER RYAN | MELBOURNE, 29 JANUARY 2014 |
Application for approval of the Signode Packaging Group Pty Ltd (Derrimut) Enterprise Agreement 2013.
[1] Application was made on 17 December 2013 by Signode Packaging Group Pty Ltd for approval of the Signode Packaging Group Pty Ltd (Derrimut) Enterprise Agreement 2013 (the Agreement).
Legislative Framework
Notice of Employee Representational Rights - s.174
[2] 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).”
[3] Section 174(1A)(c) provides that the notice “must be in the form prescribed by the regulations”.
[4] Regulation 2.05 of the Fair Work Regulations 2009 (the Regulations) prescribes the form of notice of employee representational rights as set out in Schedule 2.1, as follows:
“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].”
[5] The Notice given in this matter contained the information prescribed by s.174(3) but in addition contained a tear-off slip at the bottom of the notice which appeared as follows:
“I, _________________________ hereby appoint ________________ as my bargaining representative in the bargaining of the ITW Industrial Packaging, a division of ITW Australia Pty Ltd (Derrimut) Enterprise Agreement 2013.
___________________________ ______________
Signature Date”
[6] The reference to “ITW Industrial Packaging, a division of ITW Australia Pty Ltd” is a reference to the former name of the applicant in his matter, Signode Packaging Group Pty Ltd.
[7] Therefore the notice was not in the form prescribed by the Regulations and as such does not comply with s.174(1A).
Conclusions
[8] As the Notice of employee representational rights did not comply with the requirements in s.174, then no notice of representational rights has been provided to employees and therefore the request for employees to approve the proposed enterprise agreement could not have been made by the employer pursuant to s.181(2).
[9] For these reasons the application is dismissed.
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