Vinidex Pty Ltd T/A Vinidex

[2014] FWC 7008

[2014] FWC 7008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vinidex Pty Ltd T/A Vinidex
(AG2014/8865)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 OCTOBER 2014

Application for Approval of Vinidex Pty Limited Western Region Enterprise Agreement 2014.

[1] Vinidex applied for approval of the Vinidex Pty Limited Western Region Enterprise Agreement 2014. The application for approval was supported by The Australian Workers’ Union and the National Union of Workers.

[2] On 24 September 2014, I wrote to the parties noting that the notice of representational rights advised that a low paid bargaining authorisation had been granted. I asked the parties to provide a copy of the authorisation. I further advised the parties that if no such authorisation had been granted then the information should not have been included in the notice. I further advised that the notice incorrectly advised employees that the union that had applied for the authorisation was their bargaining representative.

[3] The parties were put on notice that this issue would be considered at a hearing on 2 October 2014.

[4] The notice of representational rights included the following paragraph:

“Fair Work Commission 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.”

[5] It was accepted by the parties that no such authorisation had been granted and that the paragraph had been included by mistake. I accept the submission that this was an inadvertent error and there was no intention to mislead employees about their representational rights.

[6] It was submitted by Vinidex that the notice complied with the Fair Work Act 2009 (the Act) as it only contained information specified prescribed by the Fair Work Regulations 2009 (the Regulations) and did not contain any other information.

[7] It was further submitted that I could be satisfied that the employee genuinely agreed to the agreement 1 because of the process of negotiations and the involvement of the unions in the process.

[8] Subsection 174(1A) provides that the notice of representational rights must contain the content, and be in the form, prescribed by the Regulations. Regulation 2.15 states:

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

[9] In Peabody Moorvale Pty Ltd v CFMEU 2 a Full Bench concluded that:

“the consequence of failing to give a Notice which complies with the content and form requirements of s.174(1A) is that the Commission cannot approve the enterprise agreement.........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.”

[10] The notice template is in the following terms:

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 Commission.

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 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 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 Commission 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 Commission Infoline on [insert number].

Did the notice comply with the notice template provided by the Regulations?

[11] It is clear that the notice did not comply with the notice template because the template makes it clear that the paragraph that was included in this notice is only to be included if a low paid bargaining authorisation has been granted by the Commission. In circumstances where no low paid bargaining order has been granted, the paragraph is not to be included.

[12] It is clear that the inclusion of such a paragraph in circumstances where no low paid bargaining order had been granted misleads employees because it advises them that even if they are not a member of a union, a union will represent them in the bargaining unless they appoint someone else or are a member of another union that applied for the authorisation.

[13] I find that the notice is not in the form prescribed by the Regulations and consistent with Peabody, no notice was given and the application to approve the agreement is dismissed.

DEPUTY PRESIDENT

 1   S186(2)

 2   [2014] FWCFB 2042

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