The Pinot Trust & The Veneto Trust; D J Marsh Dental Pty Ltd and D B Kerr Dental Pty Ltd T/A Today’s Dentistry

[2021] FWCA 6407

[2021] FWCA 6407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Pinot Trust & The Veneto Trust; D J Marsh Dental Pty Ltd and D B Kerr Dental Pty Ltd T/A Today’s Dentistry
(AG2021/7563)

TODAY’S DENTISTRY SINGLE ENTERPRISE AGREEMENT 2021

Health and welfare services
DEPUTY PRESIDENT DEAN	CANBERRA, 28 OCTOBER 2021

Application for approval of the Today’s Dentistry Single Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Today’s Dentistry Single Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Pinot Trust & The Veneto Trust; D J Marsh Dental Pty Ltd and D B Kerr Dental Pty Ltd T/A Today’s Dentistry (the Applicant). The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (NERR) issued to employees was inconsistent with the content prescribed by Schedule 2.1 of the Fair Work Regulations, in that it omitted the following paragraph:

“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.”

[3] In Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman) 1:, a Full Bench of the Commission considered the application of discretionary power under s.188(2) of the Act where the Commission may find that an agreement was genuinely agreed despite minor procedural or technical errors. The Full Bench confirmed that the paragraph relating to the union’s role was designed to ensure employees are fully aware of their representational rights in the bargaining process and the omission of it would be unlikely to constitute a minor error.2

[4] The matter was listed for hearing by telephone on 25 October 2021. The Applicant was directed to provide submissions as to how I could be satisfied that the Agreement had been genuinely agreed to, specifically in light of the following observations made by the Full Bench in Huntsman concerning the NERR requirements:

“[82] The other examples given relate to various ‘errors’ concerning the NERR requirements. We deal with some of these issues later in the context of the particular matters before us. We note here that there is at least one species of ‘error’ which is unlikely to be classified as a ‘minor error’. The prescribed text of the NERR includes the following:

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 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.

[83] If these paragraphs are omitted from the NERR provided to the employees then it is unlikely to be construed as a ‘minor error’. These paragraphs may be characterised as core requirements of the NERR, given the policy purpose associated with the provision of the NERR. As the majority observed in Ostwald:

‘[62] The inclusion by the Parliament within the Act of an express requirement upon employers to provide a notice (s.173) and the express requirements as to the content of a notice (s.174) is consistent with the importance of bargaining representation evident in the bargaining process established by the Act. It is also consistent with the objects of the Act and Part 2-4 of the Act in relation to fairness and representation at work, the right to freedom of association, the right to be represented, collective bargaining underpinned by simple good faith bargaining obligations, a simple, flexible and fair framework that enables collective bargaining in good faith and the facilitation of good faith bargaining…

[64] Second, s.174 evinces a clear intention that employees are fully informed as to their right of representation - default representation or to otherwise nominate a bargaining representative - and the means of affecting that right.

[65] Having legislated the default position in relation to bargaining representatives and the appointment of a non-default representative and the means of obtaining such representation (ss.176(1)(b) and (c)) and other matters in relation to bargaining representatives, including the requirement to notify the appointment of a non-default representative (s.178), the provisions in s.173 and s.174 of the Act were clearly intended to serve another purpose. The requirement to give a s.173 notice to relevant employees, in the terms required by s.174, serves a distinct and separate purpose from the giving of rights of representation through s.176. The requirement to give the notice in the required terms is directed to the additional purpose of advising employees of their rights of representation and the means of exercising them in order that they can effectively utilise their right of representation in bargaining and to enhance the process of fair bargaining under the Act.’

[84] We also note that, in relation to the objects of representation in bargaining, the High Court in Aldi Foods Pty Limited v SDA observed in discussing ss.173 and 176 of the Act:

‘38. These provisions serve to ensure that the employees referred to in s 172(2)(a) are able to call upon the negotiating skills and bargaining strength of employee organisations should they so choose in order to minimise the inequalities of bargaining power that might otherwise adversely affect the outcome of their negotiations with their employer.’

[85] We would also observe that in the context of Matter AG2018/6614, ACCI conceded, appropriately, that the omission from the NERR of the paragraph relating to the union’s role in the bargaining process would be unlikely to constitute a minor error:

‘In this application the employer appears to have omitted from the NERR the paragraph relating to the union’s role in the bargaining process.

The purpose of this paragraph is to inform the employee that, if they are a member of a union, their union will be their bargaining representative unless they appoint another person or revoke the union’s status. This is a core requirement of the NERR, prescribed by section 174(3) of the Act.

The purpose of the paragraph is to inform employees that, if they are members of a union, their union will be their default bargaining representative unless they appoint someone else, or revoke the union’s appointment.

On the surface, it would seem unlikely that the failure to include this paragraph could ordinarily constitute a minor error.

Despite this, some further inquiry is warranted as the effect of this error may not have been manifest and the bargaining process may have continued as it would have had the NERR been in the correct form.

For instance it is not inconceivable that the employer had spoken with each of the eight employees and ascertained that none were members of a union. As the Full Bench confirmed in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU), the purpose of the section is to “set out the default position for union members.’

[86] We agree with the submission put.” (endnotes and emphasis omitted)

[5] The Applicant submitted that the Agreement has been genuinely agreed to within the meaning of s.188(1) of the Act but for the minor or technical error made in respect of the NERR and that employees were not likely to have been disadvantaged by the error.

[6] The Applicant submitted that the error was inadvertent and unintentional, and that all employees that were entitled to vote were made aware of the missing paragraph from the NERR once the error became known. In support of this submission, the Applicant provided 18 letters all of which contain the same content as follows:

“I have been advised that there was a paragraph missing from the NERR.

Missing paragraph is:

‘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.’

I have been a part of the bargaining process for a new Single Enterprise Agreement for close to 2 years and are aware of the contents of the document.

I do not belong to a union but was provided with the contact details of the companies appointed bargaining representative to answer and [sic] questions that I have in relation to the proposed Single Enterprise Agreement.

Regardless of the missing paragraph from the NERR, it would not have changed the way in which I voted for the agreement.”

[7] The Applicant explained that the letters were signed by 18 out of the 20 employees who participated in the vote for the Agreement. Among the two employees who did not sign the letter, one was on maternity leave and the other was represented by Katrina Murphy Industrial Relations Pty Ltd (Bargaining Representative).

[8] Ms Murphy, being the only employee bargaining representative to the Agreement, was notified of the hearing but did not seek to appear or be heard on the application.

[9] Having considered the submissions and material before me, including the letter signed by 18 of the 20 employees, I am satisfied that the circumstances set out above constitute a minor technical error for the purposes of s.188(2)(a) of the Act and that the employees covered by the agreement were not likely to have been disadvantaged by the omission of the relevant paragraph. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[10] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[11] The flexibility term contained in clause 56 of the Agreement does not comply with the requirements of s.203 of the Act. The Commission cannot accept an undertaking to correct deficiencies of a flexibility term (s.190(1)). Therefore, in accordance with s.202(4) of the Act the model flexibility term is taken to be a term of the Agreement.

[12] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2021. The nominal expiry date of the Agreement is 27 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513634  PR735189>

 1   [2019] FWCFB 318

 2   Ibid at [82]-[86].

Annexure A