SRSW Pty Ltd

[2017] FWC 1520

[2017] FWC 1520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SRSW Pty Ltd
(AG2016/7839)

Oil and gas industry
COMMISSIONER LEE	MELBOURNE, 16 MARCH 2017

Application for approval of the SRSW Hydrocarbons Enterprise Agreement 2016 - not approved.

[1] An application has been made for approval of an enterprise agreement known as the SRSW Hydrocarbons Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SRSW Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[1] On 7 February 2017, the Commission advised the Applicant that it appeared the notice of employee representational rights (the notice) that was provided to employees contained content that departed from the form prescribed by Schedule 2.1 of the Fair Work Regulations 2009. The content identified was the reference to the phone number of the Fair Work Ombudsman (13 13 94) rather than the phone number for the Fair Work Commission Infoline (1300 799 675).

[2] On 9 February 2017 an email was received from the Applicant stating that they had considered the provided email and would like the application to proceed to determination.

[3] At the direction of the Commission, the Applicant filed written submissions on 23 and 27 February 2017. I have considered these submissions.

[4] The Applicant has advised that they are content for the Commission to determine the application on the papers, without the need for a formal hearing.

The law to be applied

[5] Section 186(2)(a) requires, in order for the Commission to approve an agreement that:

“The FWC 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.”

[6] 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 FWC 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:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) 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…”

[7] Section 181 sets out when employers may request employees to approve a proposed enterprise agreement. Section 181(2) provides:

“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.”

[8] Section 173(1) provides as follows:

“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.”

[9] The content of the notice of employee representational rights is dealt with in s.174. Section 174(1A) 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.”

Consideration

[10] The meaning of s.174(1A) of the Act was considered in Peabody Moorvale v CFMEU[2014] FWCFB 2042 (Peabody), a Full Bench of the Fair Work Commission said at paragraphs [46] - [47]:

“[46] In our view s 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.”

[47] Taking into account the considerations identified in Project Blue Sky we have concluded that the legislative purpose of s 174(1A) is to invalidate any Notice which modifies either the content or form of the Notice template provided in Sch 2.1 of the Regulations. We now turn to the facts of this case to determine whether the Notice given by Peabody complies with Sch 2.1.” (Emphasis added, Footnotes omitted)

[11] More recently, in Maritime Union of Australia, The v MMA Offshore Logistics Pty Ltd t/a MMA Offshore Logistics and Others [2017] FWCFB 660 (MMA Offshore Logistics), a Full Bench of the Commission considered the validity of a notice which contained the telephone number of the Fair Work Ombudsman in the final paragraph.

[12] Regarding the notice, the Full Bench said, at paragraphs [98] and [101]:

“[98]… In light of Aldi, we consider that the proper course is to follow Peabody and approach the NERR issue on the basis that a purported NERR which does not strictly comply with the prescribed form in Schedule 2.1 is invalid, and that an enterprise agreement which proceeds on the basis of an invalid NERR is incapable of approval.

[101]… The prescribed form clearly intended that employees in receipt of an NERR be informed of the telephone number of the Fair Work Commission infoline as a source of information about enterprise bargaining. The prescribed form commanded that the number for that infoline be inserted for that purpose. That purpose would be frustrated entirely if a different and incorrect telephone number could validly be inserted into the NERR. Even if the requirement for strict compliance still allowed some capacity for errors of an entirely trivial nature to be overlooked (the possibility of which was adverted to by Jessup J in Aldi at [49] and by the Full Bench in KCL at [17]), we do not consider that the defect in the NERRs here could be characterised as trivial…”

[13] The Full Bench held at paragraph [104]:

“[104] … That the Commission’s duty is not to approve enterprise agreements where the NERR issued by the Employer does not strictly comply with the current prescribed form in respect of that last paragraph.”

[14] The Applicant submits that an application for judicial review of this decision by the Federal Court was made and further that the decision has been stayed in part. The Applicant submits that the Full Bench in MMA Offshore Logistics was not asked to consider the arguments provided in the Applicant’s submissions in this matter. Further, that the Commission is therefore not bound by the previous referred decisions and should appraise the Agreement on its merit. I have considered the submissions put by the Applicant in this matter however I accept and adopt the findings in Peabody and MMA Offshore Logistics.

[15] It would appear that, in line with the above mentioned decisions, the notice in this case does not comply with the Act as it departs from the form prescribed in Schedule 2.1 of the Regulations, and is therefore invalid. It seems to follow that as no valid notice of employee representational rights was given to employees, the Agreement cannot be approved.

[16] A notice of employee representational rights that complies with s.174 is required in order to be satisfied that the agreement has been genuinely agreed to by the employees covered by the Agreement. As the notice does not comply with s.174, there was no valid notice provided to employees. Following the application of the relevant legislative provisions set out above, I cannot be satisfied that the employees have genuinely agreed to the Agreement pursuant to s.186(2).

[17] For the above reasons I cannot approve the Agreement. The application is dismissed.

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