Yakult Australia Pty Ltd

[2014] FWC 7699

[2014] FWC 7699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Yakult Australia Pty Ltd
(AG2014/7760)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 3 NOVEMBER 2014

Application for approval of the Yakult Australia Pty Ltd & National Union of Workers Enterprise Agreement 2014 - Notice of Employee Representational Rights - application dismissed.

[1] An application has been made by Yakult Australia Pty Ltd (the Applicant) for approval of an enterprise agreement known as the Yakult Australia Pty Ltd & National Union of Workers Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[1] The Employer’s Declaration in Support of an Application for Approval was made by Mr David Whatley, Director, Sales & Corporate Affairs of the Applicant. Attached to that Declaration was a Notice of Employee Representational Rights (NERR) that had been given to the employees of the Applicant on 2 September 2013.

[2] Section 174 of the Act provides 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).”

[3] The NERR attached to the Employer’s Declaration is inconsistent with s.174(1A)(a) of the Act in that it in that it is not in the form prescribed by the Fair Work Regulations 2009 (the FW Regulations).

[4] I wrote to the parties on 27 October 2014 advising that the NERR provided with the application was inconsistent with the FW Regulations.

[5] As the requirements of s.174(1A)(a) have not been complied with, I cannot be satisfied that employees have genuinely agreed to the enterprise agreement.

[6] Beyond this, the agreement provided to the Commission for approval was not signed. This is inconsistent with s.185(2) of the Act.

[7] Accordingly, I am not satisfied that the requirements of sections 185 and 186 of the Act have been satisfied.

[8] The application for approval of the Agreement is therefore dismissed.

DEPUTY PRESIDENT

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