Stanthorpe Fresh Salads and Herbs Pty Ltd

[2013] FWC 4510

[2013] FWC 4510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Stanthorpe Fresh Salads and Herbs Pty Ltd
(AG2013/1506)

COMMISSIONER SPENCER BRISBANE, 8 JULY 2013

Application for approval of the Stanthorpe Fresh Salads and Herbs Pty Ltd Enterprise Agreement 2013.

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

[2] The Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) declares that the date on which the last notice of representational rights was given to an employee who will be covered by the Agreement was 17 May 2013.

[3] Relevant to this application, the Fair Work Amendment Act 2012 (the Amendment Act) amended the Act.

[4] By Schedule 11, Part 4, Item 8 of the Amendment Act, s.174(1A) (extracted below) was inserted into the Act. That section applies in relation to notices of employee representational rights that are given, after the commencement of that Part.

[5] By operation of s.2(1), item 4, of the Amendment Act, Schedule 4 came into operation on 1 January 2013.

[6] By operation of the Amending Act, s.174(1A) of the Act was in operation and applied to the notices issued in relation to this Agreement.

[7] Section 174(1A) of the Act, in part, provides:

“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.

...”

[8] After a preliminary review of the supporting material it was raised with the Applicant that the document attached to the Form F17, declared to be the notice of employee representational rights, did not comply with the s.174(1A). Specifically it was raised with the Applicant that the notice had material that was not the content prescribed and was not in the form prescribed by the regulations.

[9] The Applicant, in response, conceded that the notice did not comply with s.174(1A) of the Act. The Applicant submitted that this was an “innocent” error in applying the previous section of the Act not taking into account the amendments to the Act. The Applicant submitted that the Commission should still approve the Agreement as it was submitted that it otherwise complied with the provisions of the Act in so far as they are relevant to enterprise agreement approval.

[10] The Commission does not have any material before it to indicate that the notice was provided other than by an innocent mistake. Given the nature of this preliminary issue the Commission has made no determination as to the other requirements of the Act.

[11] The case authorities are that s.174(1A) of the Act requires strict compliance with the pre-approval step relating to notices of employee representational rights. 1 The notice in this matter was deficient.

The Agreement cannot be approved on the material before the Commission. The application is refused.

COMMISSIONER

 1   For example Melbourne Satellites Pty Ltd [2013] FWC 1314 per Roe C; ECS Solutions Pty Ltd [2013] FWC 2299 per Richards SDP.

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