The Uniting Church in Australia Property Trust (Q) T/A Uniting Care Health

[2015] FWC 6177

[2015] FWC 6177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

The Uniting Church in Australia Property Trust (Q) T/A Uniting Care Health
(AG2015/4374)

COMMISSIONER CAMBRIDGE SYDNEY, 7 SEPTEMBER 2015

Application for approval of the UnitingCare Health & QNU Nurses Enterprise Agreement 2015 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the UnitingCare Health & QNU Nurses Enterprise Agreement 2015 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Uniting Church in Australia Property Trust (Q) trading as Uniting Care Health (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Brisbane on 18 August 2015. The application included a Statutory Declaration of Kym Shreeve made on behalf of the Employer and dated 17 August 2015 (the Declaration). The Declaration stated that the Agreement was made on 5 August 2015. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. One of these procedural requirements is specified by s.174 of the Act which states as follows:

“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.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in operation

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”

[4] As can be seen from sub-section 174 (1A), a Notice of Employee Representational Rights (NERR) must, inter alia, contain the content prescribed by the regulations, not contain any other content, and be in the form prescribed by the regulations.

[5] In this instance, a copy of the NERR was not provided with the application. However, following the identification of certain deficiencies with the application, a copy of the NERR was subsequently sent to the Commission on 21 August 2015. The NERR contained content other than that prescribed by the regulations and it altered and re-arranged other content of a NERR as prescribed by the regulations.

[6] A Full Bench of the Commission issued a Decision on 2 April 2014 1 which dealt with inter alia, the operation of the provisions of section 174 of the Act. Importantly this Full Bench Decision included the following extracts:

“[33] The Panel characterised the decision in Galintel as supporting the proposition that a Notice need only substantially comply with the requirements of s.174 and Schedule 2.1. The recommendation was a repudiation of the proposition that substantial compliance with the content and form of the Notice in Schedule 2.1 was sufficient. The ‘mischief’ Parliament was seeking to address in responding to the Panel’s recommendation and enacting subsection 174(1A) was the past practice of making alterations to the content or form of the Notice.” [emphasis added]

[39] The language of s.174(1A), the context and legislative purpose all support the proposition that a failure to comply with the provision goes to invalidity.”

[7] A more recent Full Bench Decision of the Commission 2 has dealt with the operation of the Acts Interpretation Act 1901 in respect to certain content of a NERR which did not result in any invalidity of a NERR which did not strictly comply with the regulations. In this instance the alterations to the NERR are significant such that they are not capable of being accommodated via the operation of the Acts Interpretation Act 1901.

[8] Consequently the application for approval of the Agreement does not comply with the requirements of section 174 of the Act. The nature of this particular aspect of non-compliance manifests as a deficiency which renders the application to be invalid.

[9] Further, there were some other aspects of the application and the Agreement which may need to be addressed in order to enhance the prospect for approval of any subsequent application which may be made in due course.

[10] The application was accompanied by two Form F18 Statutory Declarations of Gayle Julia McCaul made on behalf of the Queensland Nurses’ Union of Employees (the QNU), and also on behalf of Australian Nursing and Midwifery Federation (the ANMF) as employee organisations in relation to the application. These F18 Statutory Declarations raised, in almost identical term, an issue regarding terms of the Agreement (clauses 7.2.6 and 7.2.7) which were alleged to operate as terms detrimental compared to the National Employment Standards (NES). This issue would, by virtue of sub-section186 (2) (c) of the Act, require consideration of the operation of s.55 of the Act before any approval of the Agreement could be provided.

[11] Further, I note that clause 1.3 of the Agreement identifies that the Agreement covers the QNU but it does not mention the ANMF. Clause 4.4.1 (ii) prescribes a casual employment loading of 23% rather than 25%. Clause 7.6.6 provides for the cashing out of Long Service Leave.

[12] The issues which have been identified should not be treated as an exhaustive list of possible concerns identified from a detailed examination of the Agreement. Regrettably in this instance the application contains deficiencies. Although some of these deficiencies and other concerns could possibly be redressed, the particular deficiency which has arisen under section 174 of the Act cannot be rectified and renders the application as invalid.

[13] Unfortunately the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.

COMMISSIONER

 1   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.

 2   Serco Australia Pty Limited v United Voice and Union of Christmas Island Workers [2015] FWCFB 5618.

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