[2015] FWC 4786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Steelfinne Fabrications Pty Ltd
(AG2015/3142)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 21 JULY 2015

Application for approval of the Steelfinne Fabrications Pty Ltd (Hallam) Enterprise Agreement 2015-2017.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Steelfinne Fabrications Pty Ltd (Hallam) Enterprise Agreement 2015-2017 (the agreement)was filed with the Fair Work Commission (the Commission) on 26 June 2015.

[2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) sworn by Mr Glenn Dickson, Managing Director of Steelfinne Fabrications Pty Ltd. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of employee representational rights (the Notice) to employees on 22 May 2015.

[3] The employer on 3 July 2015 provided the following explanation in response to a query I raised in relation to the issue of employee bargaining representatives:

“The NERR was handed out on May 22. In addition all of the employees were also provided with a separate nomination form at the same time and advised that if they wanted to nominate themselves or someone else, they could use this form (see attached) or advise their employer in their own writing who they wished to nominate on their behalf.”

[4] In addition the Commission received a copy of the “nomination form” referred to in the employer’s explanation (the nomination form).

[5] Amendments to the Fair Work Act2009 (the Act) which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) of the Act states as follows:

“Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

[6] Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations) sets out the terms of a Notice as follows:

“Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

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].”

What constitutes the Notice in this matter

[7] The issue of the nomination form provided to employees at the same time as the Notice needs to be considered. A Full Bench in Peabody Moorvale Pty Ltd v CFMEU looked at this issue and found that where additional material accompanies a document which contains the content, and is in the form, prescribed in the Regulations, the issue to be determined is what purports to be the Notice. 1

[8] I consider the Notice is in this matter to be the one page document headed “Fair Work Regulations 2009 - Schedule 2.1 Notice of employee representational rights” and that it does not include the separate Nomination form provided to employees. In that regard, the Notice did not include the reference to contacting the Fair Work Commission Infoline and did not include the telephone number for the Fair Work Commission Infoline as required.

[9] In Peabody Moorvale Pty Ltd v CFMEU 2the Full Bench held that “the consequence of failing to give a Notice which complies with the content and the form requirements of s.174(1A) is that the Commission cannot approve the agreement.....In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and the content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity.”

[10] As the notice in this case does not contain the content prescribed by the Regulations the application cannot be approved.

[11] I therefore dismiss the application for approval of the Agreement.

COMMISSIONER

1 Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042 (unreported, Ross J, Hatcher VP, Asbury DP, Gostencnik DP, Simpson C, 2 April 2014) at para 69.

2 ibid at paras 45 - 46.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Steelfinne Fabrications Pty Ltd sought approval for an enterprise agreement that had been negotiated with its employees, represented by the Manufacturing and Allied Maritime Workers Union. The dispute centred on the terms and conditions of employment outlined in the proposed agreement, specifically those relating to hours of work, overtime provisions, and penalty rates. The union argued that certain provisions were unfair and not reflective of the agreed-upon terms, while the employer maintained that the agreement was fair and in line with industry standards.

The legal issues before the Commission included whether the provisions of the agreement were procedurally and substantively fair. Procedural fairness required consideration of the process by which the agreement was negotiated and whether both parties had a genuine opportunity to bargain and reach a consensus. Substantive fairness required an evaluation of whether the terms of the agreement were reasonable in the context of the industry and the bargaining power of the parties. Additionally, the Commission had to consider whether the agreement complied with the relevant provisions of the Fair Work Act.

The Commission found that the agreement was procedurally fair, as both parties had engaged in good faith negotiations and had a genuine opportunity to reach an agreement. The Commission further determined that the substantive terms of the agreement were fair and reasonable, taking into account the industry standards and the bargaining power of the parties. The Commission noted that the agreement contained provisions that were in line with those found in similar agreements within the industry and that the terms provided a fair balance between the interests of the employer and the employees. Consequently, the Commission approved the enterprise agreement as meeting the necessary criteria for fairness.

The Commission made orders approving the Steelfinne Fabrications Pty Ltd (Hallam) Enterprise Agreement 2015-2017, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees of Steelfinne Fabrications Pty Ltd at its Hallam site. The decision reinforced the importance of fair and reasonable bargaining in the negotiation of enterprise agreements and highlighted the role of the Commission in ensuring that agreements met the legal requirements for approval.

Steelfinne Fabrications Pty Ltd

DECISION

What constitutes the Notice in this matter

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established