1
[2013] FWC 3161
DECISION
Fair Work Act 2009
s.185—Enterprise agreement
Shape Shopfitters Pty Ltd
(AG2013/6045)
DEPUTY PRESIDENT GOOLEY SYDNEY, 21 MAY 2013
Application for approval of Shape Shopfitters Pty Ltd Enterprise Agreement 2013-2017.
[1] Shape Shopfitters Pty Ltd lodged an application for approval of the Shape Shopfitters
Pty Ltd Enterprise Agreement 2013-2017 (the Agreement). The Agreement was approved by
employees on 11 April 2013. The notice of representational rights was issued to employees on
22 February 2013.
[2] Accompanying the application for approval was a statutory declaration sworn by Mr
Wayne Billings and attached to the application was a document which contained the content
prescribed by regulation Schedule 2.1 of the Fair Work Regulations 2009. Attached to that
document was a form1. Employees were asked to sign and return the form to the employer.
The form provided for employees to advise their employer of one of three options:
I am a member of an employee organisation and elect my default bargaining
representative.
I appoint myself as the bargaining representative.
I appoint [insert name] to represent
my interests as bargaining agent in the negotiations for an enterprise agreement.
[3] On 18 April 2013 I wrote to the Applicant’s representative, the Master Builders
Association of Victoria (MBAV) and the employee bargaining representative and advised
them that I was concerned the notice of representational rights did not comply with section
174(1A) of the Fair Work Act 2009 (FW Act) and further that the notice advised employees
that if they wished their union to be their default bargaining representative they must advise
their employer. This raised questions of whether the employees had genuinely agreed to the
agreement.
[4] I received a response from the MBAV but as I was not satisfied with the response the
application was listed for hearing on 2 May 2013. At that hearing Mr Daniel Hodges of the
MBAV appeared with representatives of the company, Ms Lumi Catrina and Mr Wayne
Billings and the employee bargaining representative Mr Steve Allen.
1 See attachment 1 to this decision.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3161
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[5] At the hearing it was submitted that:
(1) employees were given two separate documents.
(2) employees knew that completing the form was not the only way they could
appoint a bargaining representative; they knew these options were voluntary;
and there was no requirement that the form be returned.
(3) the employees all choose to select someone to be their bargaining
representative.
(4) since then the employer has learnt that none of the employees are members of
a union.
(5) the document is a pro forma and has been used before and the issue has not
been raised before. Reference was made to the approval of Cornerstone
Constructions Enterprise Agreement 2012-20162, which was approved by me
on 3 January 2013.
Legislative Framework
[6] On 1 January 2013 the following amendment to the FW Act took effect and applied to
notices of representational rights issued after the part commenced:
“8 After subsection 174(1)3
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.”
2 [2013] FWCA 43
3 Fair Work Amendment Act 2012
[2013] FWC 3161
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[7] The Explanatory Memorandum to the Fair Work Amendment Act 2012 said as follows:
“This amendment responds to Panel recommendation 19. The amendment is intended to
eliminate confusion about whether employers may modify the content or form of the
notice of employee representational rights. The amendment would make clear that the
notice must contain only the content prescribed by the regulations and no other content
except that which the regulations require an employer to insert or omit.”4
[8] The Fair Work Act Review5 discussed the effectiveness of the notice employee
representational rights. The review expressly referred to the decision of the Full Bench of Fair
Work Australia in Galintel Mills Pty Ltd t/a The Graham Group6 which considered a
bargaining notice which had at the bottom of the notice a slip which employees could fill in
to appoint a bargaining representative. The Full Bench said as follows:
“[41] There can be no doubt that the notice issued to employees in this case
contained every word required by the Regulations. The question is whether the
addition of the slip at the bottom of the notice altered its nature such that it ceased to
be a valid notice under s173. The Commissioner said that the addition of the slip meant
that the notice did not allow employees to determine freely whether to appoint an
employee bargaining representative or allow them to appoint a representative at any
time while a representative could be appointed.
[42] The AMWU contends that the slip makes completion of the slip mandatory, it
is misleading because it infers that representatives can only be appointed in this
manner, it is misleading because it infers that the union can only be appointed by
returning the slip to the Manufacturing Manager and this constitutes an improper
influence over the selection of bargaining representatives. The AMWU contends that
the slip omits certain words that could have alleviated the concerns.
[43] On our consideration of the slip these concerns are overstated and do not give
rise to the conclusion that the notice is invalid. The slip is set out in full in paragraph
[9] above. It is expressed as a request, not a mandatory requirement. It is contained on
the same page as the statutory notice which states that a union will be a bargaining
representative of union members unless the employee appoints another person. It is
otherwise expressed in neutral terms allowing complete freedom to complete it and to
appoint any bargaining representative of the employee’s choice.”7
[9] The Review Panel recommended that:
“Section 174 be amended to provide that a bargaining notice must address only the
matters specified in that section and the regulations made under it.”
4 Fair Work Amendment Bill 2012 Explanatory Memorandum at [147]
5 Towards more productive and equitable workplaces - An evaluation of the Fair Work Legislation at page 144
6 [2011] FWAFB 6772
7 Ibid at [41]-[43]
[2013] FWC 3161
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Issues for determination
[10] The question that needs to be determined is whether, by providing the employees a
document that complies with the regulations and at the same time another document with
additional content, is sufficient to overcome the mandatory requirements of s174(1A).
[11] There is no doubt that in Galintel where the notice of representational rights provided
to the employees contained the content required by the FW Act and regulation plus a tear off
slip which was to be used to advise employers of their bargaining representative contained
other content and as such it would not comply with section 174(1A).
[12] In my view it would make the amendment to the FW Act otiose and defeat the purpose
of the legislative change if all that was required was that the additional content be included in
a separate document provided to employees at the same time as a document which set out the
matters required by the FW Act and regulations.
[13] In my view the two documents provided to employees combined comprise the notice
of representational rights. As the notice of representational rights contains additional content
it does not comply with section 174(1A). As a consequence no notice of representational
rights was provided to employees and the application for approval must be dismissed.
[14] In any event, the notice in this case is substantially different to the notice considered
by the Full Bench in Galintel. The notice in Galintel was a nomination form. Here the
document required employees who were union members to advise their employer in writing
that they wished their union to be their default bargaining representative. This information is
in direct conflict with the information required to be included in the notice of representational
rights. There is no requirement in the FW Act that employees advise their employer of their
union membership to enable their union to be their default bargaining representative.
[15] It is not relevant that the employer understands that none of the employees are union
members. The notice provided to employees, at the commencement of bargaining, informs
employees of how they may be represented. It informs both union and non union members
that should they wish to have a union as their default bargaining representative they must be a
member of the union. Further there is no obligation on the employees to advise their employer
of their union membership. Both union and non union members are able to decide if they
want union representation. Of course non union members would need to join the union for the
union to be their default bargaining representative.
[16] Further it is not relevant that the employees all chose another bargaining
representative. The employees did so after they were given misleading information. It is not
possible to determine what would have occurred had they been provided with the notice as
required by the FW Act.
[17] The Applicant sought to rely upon the approval of other agreements where the same
notice was provided to employees. In particular, reference was made to the approval of the
Cornerstone Constructions Enterprise Agreement 2012-2016. That Agreement was made
prior to 1 January 2013.
[2013] FWC 3161
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Schedule 11 Part 4 section 8 provides as follows:
“(1) The amendments made by Part 5 of Schedule 4 to the amending Act (which is
about notice of employee representational rights) apply in relation to notices of
employee representational rights that are given after the commencement of that Part.
(2) Regulations that:
(a) were made for the purposes of subsection 174(6) before the
commencement of Part 5 of Schedule 4 to the amending Act; and
(b) were in force immediately before that commencement;
continue in force (and may be dealt with) after that commencement as if they had been
made for the purposes of subsection 174(1A) (as inserted by Part 5 of Schedule 4 to
the amending Act).”
[18] Therefore the decision to approve the Cornerstone Constructions Enterprise
Agreement 2012-2016 was made in the context of a different legislative framework.
[19] I have found that the notice of representational rights provided to the employees was
not a notice of representational rights as required by the FW Act.
[20] Section 188 provides that the FW Act must be satisfied that the employees genuinely
agreed to the agreement as follows:
“188 When employees have genuinely agreed to an enterprise agreement
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); and
(b) the agreement was made in accordance with whichever of subsection
182(1) or (2) applies (those subsections deal with the making of different kinds
of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement
has not been genuinely agreed to by the employees.”
[2013] FWC 3161
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[21] The majority of the Full Bench said in Oswald Bros Pty Ltd v CFMEU8 of section 188
“[80] Section 188 of the Act does not provide a wide general discretion for
determining whether employees have genuinely agreed to an enterprise agreement
focussed at the point of approval. Rather it requires specific actions to have been
undertaken (in ss.188(a) and (b) at specified times in advance of approval), with
s.188(c) then requiring satisfaction that there are no other reasonable grounds for
believing that the agreement has not been genuinely agreed to by the employees.
Section 188(c) of the Act, although itself a broad discretionary consideration, is an
additional matter about which Fair Work Australia needs to be satisfied and relates to
grounds other than those arising in relation to the ss.188(a) and (b) matters.”
[22] As no notice of the prescribed kind was provided to employees the employer did not
comply with section 181(2) and therefore the agreement cannot be approved. The application
is therefore dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR537068
8 [2012] FWAFB 9512 at [80]
FAIR WORK COMMISSION AUSTRALIA THESEAL OF
[2013] FWC 3161
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Attachment 1
Appointment of Representative for EBA negotiations.
[Name of employer]
wants to ensure that all employees are aware of and understand their rights to
representation. Therefore we ask that you reply and advise how you wish to exercise those
rights.
I
[insert name]
have received notice of my representational rights and advise the following:
[Please tick the appropriate statement]
I am a member of an employee organisation and elect my default bargaining
representative.
I appoint myself as the bargaining representative.
I appoint [insert name] to
represent my interests as bargaining agent in the negotiations for an enterprise
agreement.
Please return this to [insert name] at
your earliest convenience.
Employee Signature:
Date:
