Fair Work Commission

Serco Australia Pty Limited v United Voice and the Union of Christmas Island Workers [2015] FWCFB 5618 (Hatcher VP, Lawrence DP, Riordan C, 2 September 2015).

At first instance the Commission had dismissed an application for approval of an enterprise agreement on the basis that the notice of representational rights (the Notice) issued by Serco to its employees did not conform to the prescribed form of the notice, did not therefore comply with the requirements of section 174(1A), and was invalid as a result.

The only difference between the Notice issued and the prescribed form (set out in Schedule 2.1 of the Fair Work Regulations) as being that where the prescribed form refers to the 'Fair Work Commission', the Notice referred to 'Fair Work Australia'.

Section 25B(1)(b) of the Acts Interpretation Act provides that where an Act alters the name of a body or an office, in any instrument under an Act 'a reference to the body or the office under the former name shall … be construed as a reference to the body or the office under the new name.'

The Full Bench concluded that section 25B(1)(b) of the Acts Interpretation Act operated in respect of the Notice to make it compliant with section 174(1A). The reference to 'Fair Work Australia' in the Notice should be read as if the reference was to the 'Fair Work Commission'.

Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers [2015] FWCFB 3337 (Harrison SDP, Smith DP, Johns C, 15 May 2015).

The Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151 (Hatcher VP, Booth DP, McKenna C, 15 April 2016).

An application was made for approval of the Harbour City Ferries Maritime Agreement 2014 and the agreement was approved. The AMOU appealed the decision. It contended in the appeal that the notice of employee representational rights (NERR) issued by Harbour City Ferries (HCF) at the commencement of the negotiations failed to identify the coverage of the proposed agreement and was therefore fatally defective. A Full Bench upheld this ground of appeal and quashed the decision approving the 2014 Agreement.

Three days after the appeal decision, HCF issued a new NERR. This described the coverage of the new agreement proposed by HCF as '... employees that are currently covered by the Sydney Ferries Maritime (AMOU and MUA) Enterprise Agreement 2012'. The AMOU indicated that it did not agree with the coverage of the proposed agreement and advocated for the negotiation of a separate agreement to cover ferry masters and engineers.

HCF advised that there would be a vote in respect of its proposed new agreement. The terms of the 2015 Agreement were the same in substance as those of the 2014 Agreement. The vote proceeded and the result was 115-64 in favour of the 2015 Agreement. HCF lodged its application for approval of the 2015 Agreement. The Commission approved the Harbour City Ferries Maritime Agreement 2015.

The AMOU appealed on grounds including that HCF had not issued a valid NERR which accurately set out the coverage of the proposed agreement as required by the form prescribed under s.174(1A). The AMOU submitted that any misdescription of the coverage of the proposed agreement constituted a failure to comply with s.174(1A) and thereby rendered the NERR invalid. The Full Bench accepted that any 'non-trivial' misdescription of coverage would render a NERR invalid with the consequence that any subsequent enterprise agreement would be incapable of approval.

The Full Bench did not consider that there was any basis for the proposition that the NERR misdescribed who would be covered by the proposed agreement. There was no suggestion in the evidence or submissions that any actual employee or job which was covered by the 2012 Agreement was not covered by the 2015 Agreement, or that any actual employee or job not covered by the 2012 Agreement became covered by the 2015 Agreement. That some employees were given a different classification description for pay purposes was beside the point. The coverage was the same. The Commission’s conclusion at first instance was correct and no error had been demonstrated. Permission to appeal was refused.

Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042 (Ross J, Hatcher VP, Asbury DP, Gostencnik DP, Simpson C, 2 April 2014).

The employer stapled 2 additional pages (containing forms for nominating a bargaining representative for the proposed enterprise agreement) to the notice of employee representational rights which was provided to employees. The Full Bench was required to considered whether section 174(1A) precluded an employer providing additional material to its employees when the Notice is given.

The Commission confirmed that failing to provide a Notice which complies with the requirements of section 174(1A) means that the Commission cannot approve the enterprise agreement.

The Full Bench concluded that section 174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. However, the employer cannot add additional content to the Notice itself. The question for the Commission will then be what constitutes the Notice itself and what is 'additional material'.

In this case, the employer provided all 3 pages together to the Commission when filing the relevant statutory declaration for approval of the enterprise instrument. The Full Bench was satisfied, on the evidence, that in this case the Notice was all 3 pages.

Accordingly, the Notice was not valid and the enterprise agreement could not be approved.

Cement Australia Pty Limited [2011] FWA 6917 (Ryan C, 14 October 2011).

Cement Australia Pty Ltd (the employer) made an application for approval of the Cement Australia Packaged Products Operators West Footscray (Vic) Collective Agreement 2011 (the agreement). The statutory declaration in support of the application included a copy of the notice of employee representational rights, which was generally in the form required, with the exception that it contained an additional requirement that employees who wished to nominate a bargaining representative do so by 'Monday 15 August 2011'.

The Commission stated that the additional requirement left employees with the impression that, if they did not appoint a bargaining representative by 15 August 2011, they would not be able to have a bargaining representative.

The Commission concluded that the time limit on appointing a bargaining representative meant that the Notice was not in the form prescribed by the Fair Work Act. Accordingly, the agreement could not be approved, and the application was dismissed.

Re Transit (NSW) Services Pty Ltd T/A Transit Systems [2016] FWC 2742 (Bull DP, 3 May 2016).

The prescribed form for the notice of employee representational rights (NERR) contains a reference to a website 'www.fairwork.gov.au' that must be included in the NERR. This is the website of the Fair Work Ombudsman. The NERR provided to employees by Transit made reference to a different website 'www.fwc.gov.au', this is the website of the Fair Work Commission. The website link reference was to a different website, which takes an employee to a different institution, the Fair Work Commission instead of the required website of the Fair Work Ombudsman. Both bodies have separate and distinct roles and responsibilities.

The Commission held that the website that Parliament intended be referred to in the NERR was the Fair Work Ombudsman's, in this case that was not done and Parliament's intentions were not met.

Transit, whilst acknowledging that the NERR contained a reference to the incorrect website, urged the Commission to consider the error as being a matter of such insignificance it would not be appropriate to allow such an error to prevent the agreement's approval.

The Commission accepted that minor typographical or insignificant errors would not on the face of it render a NERR invalid, however the Commission could not accept that providing an incorrect website reference could be described as being insignificant, minor or inconsequential.

The Commission found that s.181(2) has not been complied with as employees had been directed to an incorrect website. Therefore the Commission could not be satisfied that the agreement had been genuinely agreed to as no valid notice was provided. The application for approval of the agreement was dismissed.