Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane

[2014] FWCFB 8551

[2014] FWC 7635 [Note: An appeal pursuant to s.604 (C2014/7784) was lodged against this decision - refer to Full Bench decision dated 1 December 2014 [[2014] FWCFB 8551] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane
(AG2014/4103)

DEPUTY PRESIDENT ASBURY BRISBANE, 27 OCTOBER 2014

Application for approval of the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013.

Background

[1] This decision concerns an application made on 24 March 2014 by the Uniting Church in Australia Property Trust (Q.) t/a Blue Care and Wesley Mission Brisbane (Blue Care) for approval of the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013 (the Agreement). The application for approval of the Agreement is supported by the Australian Workers’ Union (AWU) and United Voice. The application is opposed by the Queensland Nurses’ Union of Employees (QNU).

[2] The matter has some history. On 24 December 2013, I issued a decision in relation to an application for a bargaining order by the QNU and found that the QNU is a bargaining representative for the Agreement 1. There are also other proceedings on foot involving a dispute about the application of an earlier iteration of the Agreement2.

[3] At a hearing on 28 May 2014 in relation to the approval of the Agreement, I noted that there appeared to be an issue with the Notice of Representational Rights (NERR). Directions were issued on that date for the purpose of determining, as a preliminary issue, whether the NERR issued by Blue Care complied with s.174 of the Fair Work Act 2009 (the Act) and the Fair Work Regulations 2009 (the Regulations) at the time it was issued.

The issues for determination

[4] It is not in dispute that the NERR was issued on or about 23 November 2011. 3 The Act was amended with effect from 1 January 2013, by the insertion s.174(1A) which provides that a NERR must contain prescribed content, must not contain any other content and must be in a prescribed form.4 Those amendments do not have retrospective application and only apply to NERRs issued after 1 January 2013.5

[5] The NERR issued by Blue Care contains additional content to that specified in the form in Regulation 2.05 and Schedule 2.1 of the Regulations. Essentially the additional content is: the date; a letterhead; the name and address of each employee; and some introductory text about Blue Care’s objectives in making the Agreement and its intention to commence negotiations with The Australian Workers’ Union and United Voice.

[6] It is not contended that the additional content renders the notice invalid. The QNU contends that the NERR is invalid on the basis that it does not state the name of the Agreement and fails to describe its proposed coverage.

[7] The issue for determination is whether the NERR complied with s.174 of the Act and the relevant provisions of the Regulations at the time it was issued. The relevant legislative provisions as they were in November 2011 are set out in Schedule A to this Decision. A copy of the NERR issued by Blue Care in November 2011 is contained in Schedule B to this Decision.

Blue Care Submissions

[8] Blue Care submits that the NERR was valid and complied with s.174 of the Act as it then stood, in that:

● Additional content did not affect the freedom of employees to appoint a bargaining representative of their own choice;
● The omission of the name of the proposed Agreement from the NERR was not an omission of express content prescribed by Act itself;
● The NERR otherwise described the coverage of the proposed Agreement and informed employees as to their rights of representation; and
● In all other respects the NERR replicated the form in Schedule 2.1 of the Regulations.

[9] Blue Care further submits that case law at the time held that strict compliance with the legislative requirements was not necessary and practical approach without unnecessary technicality was adopted. Case law at the time also established that substantial compliance was sufficient.

QNU Submissions

[10] The focus of the QNU’s argument that the NERR issued by Blue Care in November 2011 was invalid, is an assertion that the NERR failed to comply with the Act and Regulations in two respects:

● It failed to state the name of the Agreement; and
● It failed to describe the proposed coverage of the Agreement

[11] Essentially the QNU asserts that these deficiencies are a failure to comply with a prescribed form which attracts the application of s.25C of the Acts Interpretation Act 1901 to the effect that where an Act prescribes a form then strict compliance with the form is not required and substantial compliance is sufficient.

[12] Blue Care did not comply with the Form and the question is whether there was substantial compliance. The QNU further refers to the Legislative Instruments Act 2003 and submits that the requirements of Regulation 2.05 and the prescribed form in Schedule 2.1 are of legislative character and add to s.174 with respect to the prescribed content of a NERR. Those provisions are said to impose an obligation on Blue Care to state the name of the Agreement and its proposed coverage and to create a right for all relevant employees to know the name and coverage of the Agreement.

[13] Reference was made to the decision of the High Court in Adams v Lambert where it was held that where there is a specific requirement to state a provision, it is not substantial compliance to state a different provision. The High Court also noted that the problem cannot be avoided by looking at the form as a whole, and observing that it is only bad in part. The QNU submits that by parity of reasoning when required to state the name of the proposed agreement and its proposed coverage, failure to do so in an accurate, succinct and readily comprehensible way, is not substantial compliance.

[14] Reference was also made to the Decision of a Full Bench of the Commission in Ostwald Bros in relation to the combined effect of sections, 3, 171, 173, 174, 181 (especially s.181(2), 188(a)(ii) and 188(c) and Regulation 2.05 and Schedule 2.1 to the Regulations), in support of the proposition that the legislature intended that the terms of the Act and Regulations be adhered to so that all relevant employees would know with certainty what the employer proposed and how it might impact them, in such a way that they might exercise their right to be represented in a timely way and appropriate way.

[15] Further, the QNU submits that while the point in the current proceedings is a narrow one, the NERR cannot be considered in isolation but must be considered in relation to the Agreement which Blue Care now asks the Commission to approve. In relation to the terms of the NERR issued by Blue Care, the QNU submits that it is apt to confuse and mislead employees for reasons including the following:

(a) It informs them variously that negotiations with three Unions’ will “soon commence”; that they might appoint a bargaining representative; or that a Union may end up as their default bargaining representative if they take no action. The NERR is ambiguous, contradictory and confusing;

(b) It does not name the employees “current workplace agreement”. There is no evidence as to whether the NERR was sent to both Assistants in Nursing, and personal carers (howsoever described). In view of the workforce employed by Blue Care, the agreement should have been expressly named as it was required to be. Given the lengthy history of enterprise bargaining in the workplace, which appears to have commenced in or about 1999, it would have been a simple matter for the proposed agreement to have been named as is was required to be;

(c) The term “care, support services ... employees” is an entirely inadequate description of the proposed coverage of the agreement given the industrial agreements in place at the time which applied to Blue Care and its employees. It is not a term which is defined anywhere let alone in the NERR itself. The term is, as expressed in that context, meaningless and therefore confusing.

Consideration

[16] Contrary to the QNU’s submission, in November 2011, s.25C of the Acts Interpretation Act provided that: “Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”. There was no contrary intention in the Act and accordingly substantial compliance with the form prescribed in Schedule 2.1 of the Regulations was sufficient.

[17] The issue of what amounts to substantial compliance were considered in; Galintel Rolling Mills Pty Ltd r/a The Graham Group 6 (Galintel); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union “known as the Australian Manufacturing Workers’ Union (AMWU) v Inghams Enterprises Pty Ltd7 (Inghams); and Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union8 (Ostwald Bros).

[18] Inghams and Ostwald Bros dealt with omissions from the prescribed form. In Inghams, the omission was information qualifying the right of employees to appoint a bargaining representative while in Ostwald Bros information that informed employees of the existence of that right was omitted. In Inghams a Full Bench of the Commission held that the omission was not fatal to the validity of the notice on the basis that notwithstanding the omission, the NERR still notified employees that they had the right to appoint a bargaining representative and that the omission of information about a qualification to that right had limited effect.

[19] In Ostwald Bros the omission was a provision that was an express statutory requirement in s.174(3) and s.25 of the Acts Interpretation Act did not apply. The Full Bench in that case also found that the effect of the omission was to deny employees advice as to the fact of default representation.

[20] In Galintel, the issue was whether the addition to the bottom of an NERR of a nomination slip for employees to appoint a bargaining representative, rendered the NERR invalid. The Full Bench considered the issue in the context of whether the addition to the information required to be contained in the NERR altered its nature or was misleading. The Full Bench concluded that there was no evidence that employees were mislead and that the additional words did not have the effect of invalidating the NERR.

[21] These cases stand as authority for the following propositions with respect to the terms of the Act at the point the NERR subject of this case was issued to employees:

● Additions or omissions to the terms of NERRs did not necessarily render them invalid;
● Substantial compliance with the prescribed form of the notice found in the Regulations was sufficient;
● Omission of content that was specified in s.174 would render a notice invalid; and
● Addition or omission of content that could mislead employees in relation to their rights to appoint a bargaining representative or of the fact an employee organisation entitled to represent employees in relation to work to be performed under a proposed agreement would be a default representative would render a notice invalid.

Conclusions

[22] The additional text in the NERR issued by Blue Care does not render it misleading and it is not invalid on that basis. It is also the case that the fact that the NERR is on the letterhead of the entities of the Uniting Church who issued the notice, and is dated and addressed to particular employees by name, does not render it invalid. Further, there is nothing misleading about the additional introductory text set out in the NERR.

[23] The NERR issued by Blue Care contains all of the content then stipulated in s.174 of the Act. That section does not require that an NERR set out the name of a proposed Agreement. The Form in Schedule 2.1 of the Regulations provides for the name of a proposed agreement to be inserted. In the present case, I accept that the failure to insert that information does not render the NERR invalid and is a minor omission which does not prevent the NERR from substantially complying with the legislative requirements.

[24] This is because the coverage of the proposed Agreement is clear. As provided in the NERR, the proposed coverage includes: “care, support services, clerical and administrative employees”. In the context of the operations of Blue Care, these are long established terms which should be well known to the employees concerned. The terms of s.174 of the Act refer to “work that will be performed under the agreement” and in my view the work that will be performed under the Agreement was described in the NERR.

[25] At the point a NERR is issued, the employer is giving notice of a proposal to negotiate an enterprise agreement. The employer is simply required to set out the proposed coverage and there is no basis for requiring that the scope of the proposed agreement be strictly defined. The name and coverage of an Agreement are matters that can themselves be the subject of bargaining and negotiation. 9

[26] The issue for determination in this case is narrow and relates only to whether the NERR complies with s.174 of the Act as it stood at the time the NERR was issued. A number of matters raised by the QNU go beyond that issue and traverse matters relevant to s.188 of the Act and other sections relevant to issues such as whether the Agreement was genuinely agreed to. Those matters are not relevant in these proceedings. The NERR issued by Blue Care on or about 23 November 2011 complied with the requirements of s.174 as they then were and is valid.

DEPUTY PRESIDENT

Appearances:

Mr F. Parry of Counsel on behalf of Blue Care and the Wesley Mission.

Mr M. Healy of Counsel on behalf of the Queensland Nurses’ Union of Employees.

Mr A. Herbert of Counsel on behalf of the Australian Workers’ Union of Employees Queensland.

Mr D. Peverill on behalf of United Voice Industrial Union of Employees.

Hearing details:

2014

Brisbane:

May 28;

July 23;

August 18.

SCHEDULE A

Legislation

In November 2011 s. 174 of the Act provided:

“174 Content 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.

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 FWA 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).

Regulations may prescribe additional content and form requirements etc.

(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.”

Regulation 2.05 provided:

“Notice of employee representational rights - prescribed form

For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

Schedule 2.1 to the Regulations prescribed the following form for a NERR:

“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 Australia.

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 Australia 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 Australia 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 Australia Infoline on [insert number].”

SCHEDULE B

 1   [2013] FWC 10219

 2   C2013/3732

 3   Exhibit 1- Statutory Declaration of Deborah Hastings; Exhibit 2 - Statutory declaration of Mark Bradley.

 4   Peabody Moovale Pty Ltd v CFMEU [2014] FWCFB 2042 at [18].

 5 Section 8 of Schedule 11 of the Fair Work Amendment Act 2012.

 6   [2011] FWAFB 6772.

 7   [2011] FWAFB 6106.

 8   [2012] FWAFB 9512.

 9   MSS Security Pty Ltd v Liquor Hospitality and Miscellaneous Union [2010] FWAFB 6519 at [14].

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