Tasmanian Building and Construction Industry Training Board

[2017] FWC 3455

[2017] FWC 3455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tasmanian Building and Construction Industry Training Board
(AG2017/1616)

COMMISSIONER LEE MELBOURNE, 30 JUNE 2017

Application for approval of the Tasmanian Building and Construction Industry Training Board Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Tasmanian Building and Construction Industry Training Board 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 Tasmanian Building and Construction Industry Training Board (the Applicant). The Agreement is a single enterprise agreement.

[2] On 26 May 2017 the Fair Work Commission (the Commission) wrote to the Applicant outlining my concerns in relation to the distribution of the notice of employee representational rights (the notice). Namely, that the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17) provided that the date of notification time for the Agreement was 2 May 2016 and that the employer was unable to locate a copy of the notice given at the commencement of bargaining and accordingly another copy was circulated on 5 April 2017 (a copy of the notice circulated on 5 April 2017 was lodged with the application documentation). Further information was sought from the Applicant in relation to the notice that was provided to employees after the notification time for the Agreement. On 7 June 2017 the Applicant’s representative advised that the Applicant was unable to provide any further information.

[3] On 13 June 2017 my chambers wrote to the Applicant advising that I required further information from the Applicant to be satisfied that a valid notice was provided to employees in accordance with the Act. The correspondence asked the Applicant to provide the following information in a statutory declaration: the date that the notice was distributed to employees after the notification time, the content and form of that notice and a description of the steps that were taken to give employees that notice. The correspondence provided that if a response was not received by close of business Friday 16 June 2017 addressing my concerns the application would be dismissed. The Applicant did not provide a response to this correspondence.

The law to be applied

[4] 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.”

[5] 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…”

[6] 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.”

[7] Section 173 provides as follows:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) 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.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.”

[8] 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

[9] 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)

[10] 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.

[11] Regarding the Notice, the Full Bench said, at paragraphs [98] and [104]:

“[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.

[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.”

[12] I accept and adopt the findings in Peabody and MMA Offshore Logistics.

[13] The meaning of s.173(3) of the Act was considered in Uniline Australia Limited [2016] FWCFB 4969 at paragraph [102], where a Full Bench of the Fair Work Commission agreed with Vice President Hatcher’s reasoning in Transport Workers Union of Australia v Hunter Operations Pty Ltd citing the following:

“[76] Like s.174(1A), s.173(3) is expressed in mandatory language. Not only is the word “must” used to convey the requirement that the Notice must be given as soon as practicable after the notification time, but also the expression “no later than” is used to introduce the 14-day requirement. That expression, read in the context of the subsection as a whole, must be read as meaning something equivalent to “in no circumstances after”. No other provision of the Act allows or accommodates any extension to the time allowed by s.173(3). It is not an irregularity capable of being waived under s.586(b). The language of s.173(3) therefore strongly points to invalidity being the consequence of a failure to comply.

...

[78]An interpretation of s.173(3) which requires strict compliance is consistent with the statutory purpose of the Notice as identified in Peabody Moorvale. It would ensure that employees are informed at the earliest practicable time of the fact that bargaining is occurring and their entitlement to representation in that process. An alternate construction, whereby the Notice could be given at any time without adverse consequences provided that this occurred 21 days before a vote to approve the enterprise agreement occurred, would have potential consequences which would be destructive of the Notice’s statutory purpose…”

[14] I also accept and adopt the findings in Transport Workers Union of Australia v Hunter Operations Pty Ltd and Uniline Australia Limited.

[15] As outlined above despite being provided with the opportunity the Applicant has failed to provide the Commission with the date the notice was distributed to employees after the notification time for the agreement, a copy of that notice and a description of the steps that were taken to give employees that notice. It would appear that, in line with the above mentioned decisions I cannot be satisfied that a valid notice was given to employees in accordance with the provisions of s.173(3) of the Act. That is, that the employer gave a valid notice to employees as soon as practicable, and not later than 14 days, after the notification time for the agreement.

[16] A notice of employee representational rights that complies with s.174 of the Act is required in order to be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement. As the Applicant has failed to provide a copy of the notice provided to employees after the notification time for the Agreement I cannot be satisfied that a valid notice was given to employees in accordance with the Act. 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) of the Act.

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

COMMISSIONER

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