Toyo Ink Australia Pty Ltd

[2017] FWC 2087

[2017] FWC 2087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toyo Ink Australia Pty Ltd
(AG2017/659)

COMMISSIONER LEE MELBOURNE, 13 APRIL 2017

Application for approval of the Toyo Ink Australia Pty Ltd Collective Agreement 2016 - not approved.

[1] An application has been made for approval of an enterprise agreement known as the Toyo Ink Australia Pty Ltd Collective 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 Toyo Ink Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] On 6 March 2017 the Commission advised the Applicant that it appeared the notice of employee representational rights (the notice) that was provided to employees contained content that departed from the form prescribed by Schedule 2.1 of the Fair Work Regulations 2009. The content identified is the addition of the words “(contact Sophia Dang or Hyeong Soo Kim)” and “(for those who choose the AMWU please contact Robert Gee on 9230 5700)”.

[3] On 16 March 2017 the Applicant advised that it wished to be heard on the matter. The matter was listed for hearing, by telephone before me on 3 April 2017.

[4] On 31 March 2017, Ms Dang of the Applicant advised she could not attend the hearing due to some commitments that could not be rearranged. That same day my associate advised the Applicant that I had considered the request for an adjournment of the hearing and it had not been granted.

[5] On 3 April 2017, Ms Dang of the Applicant advised that she could not attend the hearing and noted conducting and completing a stock-take as the reason. My associate advised that I had considered the request for an adjournment of the hearing and it had not been granted.

[6] At 3.00pm on 3 April 2017 my associate contacted Ms Dang by telephone to connect the Applicant to the telephone hearing. Ms Dang advised my associate that she was busy and could not participate in the hearing. The AMWU, being a bargaining representative for the agreement also did not participate in the hearing. The hearing could not proceed as listed at 3.00pm.

[7] Despite being provided with an opportunity to be heard in this matter the Applicant did not appear at the hearing or make submissions.

[8] On 4 April 2017 I wrote to Ms Dang of the Applicant outlining the history of the matter. The Applicant was provided with the opportunity to discontinue the application or if it still wished to be heard on the matter to please outline the reasons why the matter should be listed for a hearing at a later date. The Applicant was directed to advise my chambers how it wished to proceed by no later than close of business 6 April 2017. Further, that if a response was not provided by 6 April 2017 the application would be dismissed. No response was forthcoming.

The law to be applied

[9] 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.”

[10] 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…”

[11] 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.”

[12] Section 173(1) provides as follows:

“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.”

[13] 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

[14] 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)

[15] 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.

[16] 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.”

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

[18] As outlined above despite being provided with an opportunity to be heard in this matter the Applicant did not appear at the hearing or make submissions.

[19] It would appear that, in line with the above mentioned decisions, the notice in this case does not comply with the Act as it departs from the form prescribed in Schedule 2.1 of the Regulations, and is therefore invalid. It seems to follow that as no valid notice of employee representational rights was given to employees, the Agreement cannot be approved.

[20] 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 notice does not comply with s.174 of the Act, there was no valid notice provided to employees. 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.

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

COMMISSIONER

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