[2014] FWCFB 2042
The attached document replaces the document previously issued with the above code on
2 April 2014.
To insert an additional appearance and correct a typographical error.
Annastasia Kyriakidis
Associate to Justice Ross, President
Dated 2 February 2015
1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Peabody Moorvale Pty Ltd
v
Construction, Forestry, Mining and Energy Union (CFMEU)
(AG2013/12223)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER SIMPSON MELBOURNE, 2 APRIL 2014
Notice of employee representational rights - s.174(1A) of the Fair Work Act 2009 -
Regulation 2.05 and Schedule 2.1 of the Fair Work Regulations 2009 - no capacity to depart
from the form and content of the notice template provided in the Regulations - failure to
comply goes to invalidity - Project Blue Sky v Australian Broadcasting Authority (1998) 194
CLR 355 applied - employers not precluded from providing additional material to employees
at the same time as the Notice is given to them - Regulation 2.06A(b)(i) - application for
approval of an agreement to be accompanied by a signed copy - meaning of ‘address’ of each
person who signs the agreement.
Background
[1] Peabody Moorvale Pty Ltd (‘Peabody’) has filed an application (AG2013/12223, the
‘application’) for the approval of an enterprise agreement titled (the Peabody Energy
Australia Moorvale Enterprise Agreement 2013 (the ‘Agreement’) pursuant to s.185 of the
Fair Work Act 2009 (Cth) (the Act). In proceedings before Deputy President Asbury on 24
January 2014, Peabody indicated that it intended to challenge a number of first instance
decisions applying s.174(1A) of the Act and on that basis the application was referred to a
Full Bench.
[2] Two issues are before us for determination. The first is whether the notice of employee
representational rights (the ‘Notice’), provided by Peabody to each employee who will be
covered by the Agreement, complied with s.174(1A) of the Act and, if the Notice did not
comply, was it necessarily invalid and of no effect (the ‘Notice’ point). The second issue is
whether Regulation 2.06A(b)(i) of the Fair Work Regulations (the Regulations) requires that
an application for the approval of an enterprise agreement be accompanied by a signed copy
of the agreement which includes the ‘residential address’ of each person who signs the
agreement (the ‘Regulation 2.06A point’).
[2014] FWCFB 2042
DECISION
AUSTRALIA FairWork Commission
[2014] FWCFB 2042
2
The Notice Point
[3] Three documents were given to the relevant Peabody employees. They are set out as
Annexures JP1, JP2 and JP3 to Mr Paterson’s statutory declaration of 23 January 2014. Mr
Paterson is the HR Manager Operations for Peabody. These documents were stapled together.
JP1 is intended to reflect the form and content of the prescribed Notice in Schedule 2.1 of the
Regulations. JP2 is a ‘Nominee Form’ and JP3 is the ‘Employer Form’. A copy of JPI, JP2
and JP3 are attached to this decision.
[4] The CFMEU contends that the Notice consists of documents JP1, JP2 and JP3. At the
Notice contains ‘other content’, it does not comply with s.174(1A)(b) and is invalid. As a
consequence, it is submitted, the application to approve the Agreement must be dismissed.
[5] The following issues arise for determination:
(i) What is the proper construction of s.174(1A) and does non-compliance with
this provision go to invalidity?
(ii) Does s.174(1A) preclude an employer from providing additional material to its
employees at the same time as the Notice is given to them?
(iii) What constitutes the Notice in this case and does it comply with s.174(1A)?
[6] The content and form of the Notice is dealt with in s.174 of the Act:
“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:
[2014] FWCFB 2042
3
(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).”
[7] As we have mentioned, one of the issues before us is whether the Notice, provided by
Peabody to each employee who will be covered by the Agreement, complied with s.174(1A)
of the Act.
[8] Section 174(1A) provides that a Notice must contain the content, and be in the form,
prescribed in the regulations. Regulation 2.05 of the Fair Work Regulations 2009 (the
‘Regulations’) says: “For subsection 174(6) of the Act, the notice of employee
representational rights in Schedule 2.1 is prescribed.”
[9] We deal with the terms of Schedule 2.1 later. We note now, that Regulation 2.05 and
Schedule 2.1 refer to s.174(6) of the Act. Subsection 174(6) was repealed by the 2012
Amendment Act, effective 1 January 2013 (see Schedule 4, item 9 of the 2012 Amendment
Act). However, item 8(2) of Schedule 3 to the Act provides as follows:
“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).”
[10] We propose to deal first with the proper construction of s.174(1A) and the
consequences of non-compliance with that provision, before turning to the question of
whether the Notice in this case conformed to the requirements of s.174(1A).
[11] The starting point is to construe the words of s.174(1A) according to their ordinary
meaning having regard to their context and legislative purpose. Context includes the existing
state of the law and the mischief it was intended to remedy.1
[2014] FWCFB 2042
4
[12] Subsection 174(1A) provides:
“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.”
[13] The conditions set out in paragraphs 174(1A)(a), (b) and (c) are cumulative, so much
is clear from the use of the conjunctive ‘and’. A Notice must contain the prescribed content;
must not contain any other content and must be in the form prescribed. Section 174 goes on
to specify the content that must be included in the Notice, which is set out in Schedule 2.1 of
the Regulations.
[14] What then are the consequences of providing a Notice which is different, either in
content or form, from the Notice prescribed in the Regulations? As the High Court said in
Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky),2 an act done in
breach of a condition regulating the exercise of a statutory power is not necessarily invalid
and of no effect:
“Whether it is depends upon whether there can be discerned a legislative purpose to invalidate
any act that fails to comply with the condition. The existence of the purpose is ascertained by
reference to the language of the statute, its subject matter and objects, and the consequences
for the parties of holding void every act done in breach of the condition.”
[15] While there is no decisive rule that can be applied to determine legislative purpose the
decided cases provide some guidance in analogous circumstances. A textual indicator which
is always of significance is the mode of expression in the provision in question. As
Spigelman CJ observed in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd3: ‘Substantial
indeed often, but not always, determinative, weight must be given to language which is in
mandatory form’.
[16] The word ‘must’ in s.174(1A) is language in mandatory form. A similar conclusion,
albeit in a different context, was reached by the High Court in SAAP v Minister for
Immigration and Multicultural and Indigenous Affairs4. In that case the court was construing
s.424A of the Migration act 1958 (Cth) which provides:
“Applicant must be given certain information.
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the
circumstances, particulars of any information that the Tribunal considers would be the
reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why
it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in
s.441A; or
[2014] FWCFB 2042
5
(b) if the applicant is in immigration detention - by a method prescribed for the
purposes of given documents to such a person ...” (emphasis added)
[17] The use of the words ‘must give’ was described by various members of the Court as
‘imperative’.5 As McHugh J put it:
“... the assumption that no breach of s.424A occurs if the applicant has otherwise been given
procedural fairness overlooks the imperative nature of the section. Nothing in the section
suggests that fairness in the way in which the Tribunal observes its statutory obligation is an
implied limitation on its operation. The section describes a procedural step that, if enlivened
by the circumstances of the case, the Tribunal is required to take in every case. Further, the
mandatory nature of the obligation in s.424A(2)(b) points to the conclusion that the failure to
provide in writing to the applicant particulars of the adverse material and the invitation to
comment upon it amounts to a breach of s.424A ...
Because the language of s.424A is imperative, failure to comply with the obligation to provide
the applicant with particulars of adverse information in writing constitutes a breach of that
section ... There was some debate before this Court as to whether the term ‘must’ in s.424A(1)
necessarily imposed a mandatory requirement to provide the information in writing in all
circumstances. However, in the absence of any qualifying terms, the natural meaning of the
section is that the Tribunal is compelled in all circumstances to provide the information in
writing. This is so, even if the Tribunal puts the information to the applicant at an interview or
when the applicant appears before the Tribunal to give evidence and present arguments. Such
a construction is consistent with the purpose of the section to accord the applicant procedural
fairness in the conduct of the review.”6
[18] Subsection 174(1A) uses language in mandatory form and goes to some length to
make it clear that there can be no departure from the content or form of the Notice prescribed
in the Regulations. As mentioned earlier, s.174(1A) provides that a Notice must contain the
prescribed content, must not contain any other content and must be in the form prescribed.
[19] The clear and unambiguous meaning of the words of s.174(1A) is entirely consistent
with the context and mischief to which the provision is addressed.
[20] As to the context, the Notice provides employees with important information about the
nature of an enterprise agreement and the employees’ right to appoint a bargaining
representative to assist them in bargaining for the agreement or in a matter before the
Commission about bargaining for the agreement. The Notice sets out the default position for
union members, that is, they will be represented by their union if they do not appoint a
bargaining representative.
[21] Bargaining representatives perform an important role in the negotiation of an
enterprise agreement. Section 228 sets out the ‘good faith bargaining requirements’ that must
be met during the bargaining process. Importantly, the employer must ‘recognise and
bargain’ with other bargaining representatives (s.228(1)(f)); ‘give consideration’ to the
proposals of other bargaining representatives and respond to those proposals in a timely
manner (s.228(1)(c)), giving reasons for their responses (s.228(1)(d)). A bargaining
representative may apply to the Commission for a bargaining order under s.230 in relation to
the agreement (s.229(1)). An employee organisation that was a bargaining representative for
the proposed enterprise agreement has an entitlement to be covered by the agreement (see
s.183(1) and 201(2)).
[2014] FWCFB 2042
6
[22] Sections 173 and 174 are integral to the scheme of Part 2-4 of the Act. Section 173
provides that the employer must give the Notice to the relevant employees as soon as
practicable, and not later than 14 days after the ‘notification time’ for the agreement. In the
context of this case the ‘notification time’ is the time when the employer ‘agrees to bargain, or
initiates bargaining, for the ‘agreement’ (s.173(2)(a)). Section 174 deals with the form and
content of the Notice. Importantly, the employer cannot request employees to approve the
agreement until 21 days after the last Notice is given (see s.181(2)).
[23] Section 578(a) of the Act is also relevant. It provides that in performing functions or
exercising powers in relation to a matter under a part of the Act, the Commission must take
into account the objects of the Act and any objects of the part of the Act. Section 174 is in
Part 2-4 of Chapter 2 of the Act. The objects of Part 2-4 are set out in s.171:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good
faith, particularly at the enterprise level, for enterprise agreements that deliver productivity
benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise
agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are
dealt with without delay.” (emphasis added)
[24] The clear and unambiguous meaning of s.174(1A) is entirely consistent with the
objects of Part 2-4 of the Act and the important role of bargaining representatives in the
negotiation of agreements.
[25] The general objects of the Act are also an important contextual consideration. One of
the objects of the Act is ‘enabling fairness and representation at work ... by recognising ... the
right to be represented’ (s.3(e)). The adoption of the clear meaning of s.174(1A) is consistent
with this statutory objective.
[26] The evident legislative purpose is confirmed by the legislative history and the relevant
extrinsic materials.
[27] Subsections 174(1A) and (1B) were enacted by the Fair Work Amendment Act 2012
(the 2012 Amendment Act) (see Schedule 4, item 8). The relevant extract from the
Explanatory Memorandum to what became ss.174(1A) and (1B) states:
“145. Under the FW Act employees are entitled to be represented in bargaining for a proposed
enterprise agreement by a bargaining representative of their choice, including an employee
organisation. The FW Act requires an employer to give notice to each employee to be covered
by a proposed enterprise agreement of their right to be represented in bargaining for an
enterprise agreement by a bargaining representative. Section 174 of the FW Act provides for
the content and form of notice of employee representational rights.
[2014] FWCFB 2042
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146. Item 8 would insert new subsections 174(1A) and 174(1B) to provide that a notice of
employee representational rights must only contain the content prescribed by the regulations
(which must comply with the requirements of section 174), must not contain any other content
and must be in the form prescribed by the regulations. Item 7 would amend the heading to
section 174 to clarify that the section deals with both content and form requirements.
147. 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.” (emphasis added)
[28] The emphasised text is entirely consistent with the clear and unambiguous terms of
s.174(1A). The recommendation referred to in the Explanatory Memorandum is contained in
report of the Panel set up to review the Act and the Workplace Relations Amendment
(Transition to Forward with Fairness Act) 2008. The Panel’s report is titled ‘Towards more
productive and equitable workplaces: An evaluation of the Fair Work legislation’ (the
Review Report) Recommendation 19 of the Review Report is in the following terms:
“The Panel recommends that s.174 be amended to provide a bargaining notice must address
only the matters specified in that section and the regulations made under it.”
[29] The commentary in the Review Report which prefaces this recommendation is as
follows7:
“Effectiveness of notice of employee representational rights
A number of unions submitted that modifications and additions to the Notice of Employee
Representational Rights contained in Schedule 2.1 of the FW Regulations should not be
permitted under the FW Act. Some examples were provided in which it was alleged that
employers had sought to encourage employees to extinguish their right to be represented by
their union.8 The SDA submitted that there should be additional notification obligations in
respect of known representatives, or alternatively that the notice should be amended to make
clear to an employee that the representative is not being independently advised of the
bargaining.9 The TCFUA submitted that there should be an ongoing obligation to provide the
notice to employees subsequently employed.10
The Ai Group submitted that the current approach of FWA, requiring only substantial
compliance with the notice requirements, is adequate.11
The Notice of Employee Representational Rights provided for in s. 173 and s. 174 of the FW
Act and its attendant regulations alert employees to their statutory right to be represented in
bargaining. Employers are required to take all reasonable steps to give their employees the s.
173 notice.
There have been a number of FWA decisions concerning the content of the s. 173 notice. The
most significant decision is Galintel Mills Pty Ltd t/a The Graham Group ([2011] FWAFB
6772). In this matter, the employer placed a slip at the foot of the bargaining notice which
employees could sign to appoint a bargaining representative. The Full Bench held that, as the
notice did contain all of the requirements, the notice was valid. Put briefly, the case law allows
employers to substantially comply with the notice requirements.
There is evidence of employers modifying the content or form of the Notice of Employee
Representational Rights, both from stakeholders, as referred to above, and in several FWA
[2014] FWCFB 2042
8
decisions (See, for example, Cement Australia Pty Limited [2011] FWA 6917 (14 October
2011); Regent Taxis Pty Limited T/A Gold Coast Cabs [2011] FWA 3683 (10 June 2011);
Melsteel Constructions Pty Ltd [2010] FWA 7731 (5 October 2010); Reliable Enterprises Pty
Ltd T/A Southern Starr Fire Protection [2012] FWA 2950 (4 April 2012); Capricornia Pty Ltd
t/a Quality Hotel Batman’s Hill on Collins [2011] FWA 727 (10 February 2011); Royal
Australian College of General Practitioners [2010] FWA 7881 (4 April 2012); Leane
Electrical Pty Ltd [2010] FWA 1605 (5 March 2012) Note: we refer to these later as the
footnote s.32 decisions). While the evidence does not demonstrate that the practice is
widespread, the Panel is concerned that there have been several instances of this conduct.
The s. 173 notice is an integral element in the bargaining regime. To eliminate confusion and
any opportunities for malpractice, we recommend that the Government amend s. 174 of the
FW Act to make it clear that a bargaining notice may only contain the requirements as
specified in the section and its attendant regulations.”
[30] The Panel’s recommendation was in response to submissions that modifications and
additions to the Notice contained in Schedule 2.1 of the Regulations should not be permitted.
It is apparent that the Panel were concerned that there had been several instances of employers
modifying the content or form of the Notice and the recommendation was made ‘[t]o
eliminate confusion and any opportunities for malpractice’. The Review Report made
specific reference to Galintel Rolling Mills Pty Ltd t/as The Graham Group (Galintel)12 as the
‘most significant decision’ concerning the content of a s.173 notice and in footnote 532
referred to several decisions by Fair Work Australia (as the Commission was then known)
dealing with employers modifying the content or form of the Notice provided to employees.
[31] In Galintel the Notice was in identical terms to the prescribed form in Schedule 2.1 of
the Regulations save that at the bottom of the Notice was what was described as a ‘slip’
enabling employees to nominate a bargaining representative. The ‘slip’ was in the following
terms:
“____________________________________________________________________
Please complete the following slip and return the slip to Mark Vincer,
Manufacturing Manager
Nomination of Bargaining representative
I ________________________nominate __________________________ to be my
(Name of Employee) (Name of Bargaining Representative)
bargaining representative to represent me in bargaining for the Graham Group Galintel
Rolling Mill Yagoona Enterprise Agreement.
___________________________________ ____________________
Employee signature Date ”
[32] At first instance a Commissioner had held that the Notice did not comply with s.173 of
the Act. In upholding the appeal and quashing the Commissioner’s decision the Full Bench
said:
“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
[2014] FWCFB 2042
9
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.
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.
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.
Commissioner Ryan referred to “numerous decisions of the tribunal which go to the issue of
employers adding additional constraints or requirements to bargaining representative notices”.
The AMWU referred to the decision of SDP O’Callaghan in the Leane Electrical Pty Ltd
case.13 In that case a form attached to the Notice of Representational Rights was in quite
different terms to the slip in this case. The form contained a statement confirming that the
employee did not wish to be represented by the union. The Senior Deputy President found that
the form left employees with no choice other than to select a representative other than the
union and constituted a requirement to relinquish union representation. We consider that these
comments may involve an element of overstatement but it is sufficient to note that the
circumstances of this matter are quite different. In no way can the slip be construed as
invalidating the notice of representation rights.
We also note that in AMWU v Inghams Enterprises Pty Ltd14 a Full Bench of FWA held that
the omission of certain words from a notice of representational rights did not result in its
invalidity.
While it is generally unwise for an employer to alter or add to the terms of a Notice of
Representational Rights because an alteration may alter its nature, we are unable to agree with
the Commissioner or the AMWU that the slip added at the base of the notice given by Galintel
had any such effect. It may have been preferable to reiterate the optional nature of any
appointment of a bargaining representative, perhaps by including the words “If you wish to
appoint a bargaining representative” before the words on the slip “Please complete...”.
Importantly however there was no evidence that any of the six employees to be covered by the
Agreement were mislead into a belief that appointment was mandatory. As a valid notice was
provided to employees and as the requisite 21 days expired before the request was made to
approve the agreement, s181(2) was satisfied in the circumstances of this case.”15
[33] The Panel characterised the decision in Galintel as supporting the proposition that a
Notice need only substantially comply with the requirements of s.174 and Schedule 2.1. The
recommendation was a repudiation of the proposition that substantial compliance with the
content and form of the Notice in Schedule 2.1 was sufficient. The ‘mischief’ Parliament was
seeking to address in responding to the Panel’s recommendation and enacting subsection
174(1A) was the past practice of making alterations to the content or form of the Notice.
[2014] FWCFB 2042
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[34] We note here that the CFMEU submitted that the Review Panel’s recommendation
travelled beyond a repudiation of Galintel and the notion that substantial compliance with the
content and form of the prescribed Notice was sufficient, and embraced each of the decisions
in footnote 532 to the Review Report. In each of the decisions referred to in footnote s.532
the Commission decided, for various reasons, that the Notice did not comply with s.174 of the
Act.
[35] The CFMEU submits that by the enactment of s.174(1A) to implement Review Report
recommendation 19 the legislature intended to make it clear that the conduct involved in the
footnote 532 decisions was prohibited conduct and the enactment was intended to extend to:
“... placing a slip at the foot of the notice so that employees could sign to appoint a bargaining
representative; including on the notice a requirement to nominate a bargaining representative
by a certain date; sending a memorandum with the notice attached; accompanying a notice
with a nomination form to nominate the employee’s bargaining representative; providing a
memo with the notice at the same time, and providing a ‘covering advice’ to the notice, as
well as attaching a pro forma ‘Representational Rights’ to nominate a bargaining
representative.”
[36] In our view this submission draws too long a bow. To make good its submission the
CFMEU must establish two things - first the Review Panel should be taken to endorsing the
outcome of the decisions referred to in footnote 532 and, secondly, that in enacting s.174(1A)
the legislature was giving effect to not just recommendation 19 but also to the Review Panel’s
endorsement of the footnote 532 decisions. We are not persuaded that there is a sound basis
for the adoption of either proposition.
[37] It is tolerably clear from the Review Report extract set out at paragraph [29] above
that the footnote 532 decisions were referred to merely for the purpose of supporting the
observation that there was evidence of employers modifying the content and form of Notices.
Unlike the Review Report’s express reference to Galintel there was no discussion of the
footnote 532 decisions.
[38] The second of the propositions the CFMEU has to establish also fails, for two reasons.
First, it is based on an erroneous assumption that the Review Panel should be taken to be
endorsing the footnote 532 decisions. And, second, the extrinsic material relating to the
enactment of s.174(1A) makes no reference to any intention to endorse the footnote s.532
decisions.
[39] The language of s.174(1A), the context and legislative purpose all support the
proposition that a failure to comply with the provision goes to invalidity. We now turn to the
consequences of such a construction.
[40] The Commission must approve an enterprise agreement if, relevantly, the
requirements set out in ss.186 and 187 of the Act are met. Subsection 186(2) provides:
“The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement - the agreement has been genuinely
agreed to by the employees covered by the agreement ...”
[2014] FWCFB 2042
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[41] Section 188 deals with when employees have ‘genuinely agreed’ to an enterprise
agreement, it provides:
“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:
...
(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.”
[42] Section 181 provides:
“(1) An employer that will be covered by a proposed enterprise agreement may request the
employees covered at the time who will be covered by the agreement to approve the
agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last
notice under subsection 173(1) (which deals with giving notice of employee representational
rights) in relation to the agreement is given ...”
[43] Section 173 provides:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a
greenfields agreement must take all reasonable steps to give notice of the right to be
represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation;
or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer
comes into operation.
[2014] FWCFB 2042
12
Note: The employer cannot request employees to approve the agreement under
section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after
the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in
relation to a proposed enterprise agreement if the employer has already given the employee a
notice under that subsection within a reasonable period before the notification time for the
agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.”
[44] The 21 day requirement in s.181(2) is met if there was a period of at least 21 days after
the last Notice was given before employees were asked to approve the proposed agreement.
This requirement is not met unless the Notice is validly issued under s.173 and a Notice will
be valid provided that it complies with the content and form requirements of s.174(1A).
[45] 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.
We note that this does not prevent the employer from recommencing the bargaining process,
completing the pre-approval steps (including the giving of valid Notices) and making
application to have the resultant enterprise agreement approved by the Commission.
[46] 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. We agree with the Minister’s
submissions on this point, that is:
“A mandatory template is provided in the Regulations. The provisions make it clear that there
is not scope to modify either the content or the form of the Notice other than as set out in the
template.”16
[47] Taking into account the considerations identified in Project Blue Sky we have
concluded that the legislative purpose of s.174(1A) is to invalidate any Notice which modifies
either the content or form of the Notice template provided in Schedule 2.1 of the Regulations.
We now turn to the facts of this case to determine whether the Notice given by Peabody
complies with Schedule 2.1.
[48] There is no dispute that Peabody gave the Notice to the relevant employees within 14
days after the notification time for the Agreement (as required by s.173) and that it was given
in a manner consistent with Regulation 2.04. The issue in dispute is whether the Notice
complied with s.174(1A) of the Act. Two particular questions arise in this case - whether the
Notice contained ‘any other content’ within the meaning of s.174(1A)(b) and whether it
contained the content prescribed by the Regulations (s.174(1A)(a)).
[49] The CFMEU submits that the content and form of the Notice included all three pages
and not just the first page, that is the Notice consisted of JP1, JP2 and JP3. It is submitted that
the second and third pages, namely, (JP2) and (JP3), both fall within the prohibition that the
[2014] FWCFB 2042
13
notice must not contain any other content. In support of this submission, it points to Mr
Paterson’s response to one of the questions in the Form 17 at 2.3, “Did the employer take all
reasonable steps to give notice of their right to be represented by a bargaining representative
to each employee who will be covered by the agreement?” In response to this question, Mr
Paterson declared, “Yes, please attach a copy of the notice given to employees.” (emphasis
added). This response to this Form 17 question was to attach all three pages of the material
provided to the employees (JP1, JP2 and JP3). Mr Paterson is the HR Manager Operations
for Peabody.
[50] The context of this declaration included the instructions in the FWC publication
“About the F17 Statutory Declaration” contained on the first page:
“Lodgment and service of your completed form
1. Lodge the following documents with the Commission within 14 calendar days after the
agreement is made:
this statutory declaration and
the notice of representational rights referred to in question 2.3.
You can lodge by post, by fax or by email or in person at the Commission’s office in your
State or Territory. You can also lodge online using the Commission’s eFiling service at
www.fwc.gov.au.”
[51] In the Form 17 statutory declaration at 2.3, Mr Paterson further declared:
“A presentation was provided to all employees. The presentation detailed the overall process,
the Company’s requirements under s. 173 of the Fair Work Act 2009 (Cth), the employee’s
rights to nominate a bargaining representative of their choice and provided an open forum for
the employees to ask questions on the process. All employees were provided with the attached
notice of employee representational rights and provided an avenue to lodge this by returning it
to the Company” (emphasis added)
[52] The reference in the Form 17 to “the attached notice” was to all three pages provided
to the employees. The reference to “lodge this” meant the Notice and in particular the
“Nominee Form” that was part of the material provided to the employees.
[53] The CFMEU also relies on an email of 20 December 2013, which represented to be
“… an originating application for the approval, by the Brisbane Fair Work Commission, for a
new enterprise agreement”, included as one of the PDF attachments a three-page file named
and saved as the “Moorvale Notice of Employee Representational Rights”. This document is
the three-page document and not just the first page that the applicant now wants to solely rely
upon. The 20 December 2013 email also represented that there was contained in the
correspondence the “Notice or (sic) Employee Representational Rights”. Again, this notice is
the three-page document.
[54] Mr Paterson’s evidence is that Peabody decided to formally commence bargaining for
the Agreement on 26 or 27 November 2013 and the Notice was given to the relevant
employees on 28 November 2013. At paragraphs [27] to [35] of his 23 January 2014
statutory declaration Mr Paterson states:
http://www.fwc.gov.au/
http://www.air.gov.au/airweb/login.aspx
http://www.fwc.gov.au/index.cfm?pagename=headercontactstate
[2014] FWCFB 2042
14
“27. I understood that the employees could be represented by the CFMEU if they were a
member of that union, and that the CFMEU would be their default bargaining representative if
they did not select another bargaining representative.
28. My understanding was that employees who were not members of the CFMEU were
entitled to appoint either themselves or another person as their bargaining representative. I also
understood that employees who were a member of the CFMEU had the right to appoint a
different bargaining representative. In either case, my understanding was that they would need
to advise the employer in writing of that appointment.
29. To assist employees exercise the rights which I understood they had, I also provided them
a suitable form which they could use for the purpose of an appointment if they decided to do
so.
30. Now shown to me and marked JP-1 is a copy of the Notice of Employee Representational
Rights.
31. Now shown to me and marked JP-2 is an employer's copy of a bargaining representative
nomination form.
32. Now shown to me and marked JP-3 is an employee's copy of a bargaining representative
nomination form.
33. These three separate documents were handed out together to the 27 employees on 28
November 2013 in the course of the induction. It was clear to me, and, I believe, obvious to
everyone, that they were different documents with quite different purposes.
34. The purpose in providing two versions of the nomination form was so the employees could
provide one copy to their nominated bargaining representative and provide the other copy to
Peabody as the employer.
35. I provided the nomination forms to the employees to facilitate and support the statement in
the Notice of Employee Representational Rights that employees could notify Peabody
Moorvale in writing that they appointed a person as their bargaining representative.”
[55] The CFMEU submits the Commission should not accept either what it characterises as
‘the recent inventions by Mr Paterson’ in his 23 January 2014 statutory declaration at [33]
(see paragraph above).
[56] The CFMEU submits that the Notice was not valid as it did not comply with s.174(1A)
in that it contained ‘other content’ (namely documents ‘JP2’ and ‘JP3’) and hence was not in
the form prescribed by Regulation 2.05.
[57] The CFMEU relied on the decision of Deputy President Gooley in Shape Shopfitters
Pty Ltd17 (Shape Shopfitters), and other first instance decisions applying Shape Shopfitters, in
support of its submissions. In Shape Shopfitters the issue was whether the Notice in that case
complied with s.174(1A). The Notice contained the content prescribed in Schedule 2.1 and
attached to that document was a form which provided for employees to advise the 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.
[2014] FWCFB 2042
15
[58] The Deputy President concluded that as no Notice of the prescribed kind was provided
to employees, the employer did not comply with s.181(2) and therefore the agreement could
not be approved. In the course of her reasons the Deputy President said:
“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).
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).
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.
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.”18
[59] Peabody submits that the Notice complied with s.174(1A) of the Act:
“In the absence of any evidence that any employee was misled, confused or did not understand
exactly what their bargaining rights were, Parliament could not have intended that the
provision of additional assistance aimed at giving content to the bargaining rights which, as
the [Notice] explained, employees had, would have invalidated the entire agreement making
process simply because that assistance was in a written form and provided together with the
[Notice].”19
[60] Peabody submits that the requirements of s.174(1A) apply to the Notice itself (ie
‘JP1’) and do not apply to any other form or information provided at the same time. Peabody
characterises JP2 and JP3 as additional material which did not form part of the Notice. It
submits that the Notice provided (‘JP1’) did not contain any other ‘content’ than that
prescribed by the Act. Peabody’s submissions in this regard are encapsulated in paragraphs
22-24 and 32-36 of its written submission:
“22. Nowhere in section 174(1A) does it suggest either that it is impermissible for an
employer to provide other information at the same time as the notice is provided, or that, if
such information is provided in writing, it in some way modifies the [Notice] so that it then
contains impermissible content.
23. All that has occurred here is that the employer has provided employees with a form which
they might use to exercise a right which they not only have under the FW Act20 but which is
specifically referenced in the [Notice] itself.
24. Nor does the provision of a form allowing for the appointment of alternative bargaining
representatives suggest that the employer is seeking to persuade employees not to have their
affairs represented in the negotiation by a union of which they are a member. The nomination
form itself plainly states that if any of the Applicant's employees are a member of a union, it
will be their default bargaining representative unless they appoint another person to be their
bargaining representative.
[2014] FWCFB 2042
16
...
32. Nowhere can it be inferred from the FW Act, as informed both by the explanatory
memorandum for s 174(1A) and by the report recommendation which was intended to be
adopted by the amendment, that Parliament intended that the provision of additional
documents (in this case provided to facilitate a choice given by the document itself) was either
a breach of the requirement or, if it was, that it would invalidate the [Notice], and therefore the
entire enterprise agreement negotiation process.
33. The absurd consequence of this conclusion can be emphasised by noting that the additional
'content' which was of concern could have just as easily been provided in a different way (for
example by email sent at a slightly earlier or later time, or even at same time). Information
could also have been contained in a slide presentation or on a whiteboard or simply as part of
an oral presentation. In those circumstances, even if it was specifically directed and denying
the rights referred to in the [Notice], there could be no argument that the content was 'fused' to
the [Notice] itself so as to produce a document containing different content.
34. It is not inconsistent in any way with the purpose of providing the [Notice] or indeed with
any aspect of the enterprise negotiation framework, for an employer to facilitate the exercise
by employees of a right (in this case to appoint a bargaining representative) which is not only
permissible but is in fact referred to specifically in the [Notice] and is a fundamental right
given to employees in an enterprise negotiation process.
35. These are not results which could have been contemplated by Parliament, whose principle
reason in enacting s 174(1A) was to 'eliminate confusion about whether employers may
modify the content or form of the notice of employee representational rights'.
36. To the contrary, the conclusion would suggest that Parliament's intention was to create an
administrative minefield for employers and their employees, in which the provision of
innocent assistance to employees by an employer would destroy the bargaining process, in the
absence of any evidence that any employee was misled, confused or did not understand
exactly what rights were provided to them by the [Notice]. That is a bleak assumption about
Parliament's intention which should not be accepted. It would be wholly inconsistent with:
(a) the objects of Part 2-4 of the FW Act expressed ins 17l(a) ‘to provide a simple,
flexible and fair framework that enables collective bargaining in good faith,
particularly at the enterprise level, for ente1prise agreements that deliver productivity
benefits’; and
(b) the practical and non-technical manner with which the Commission has recognised
agreements should be approved.21”
[61] Peabody submits that the decisions relied on by the CFMEU (ie Shape Shopfitters and
the decisions which apply it) were decided contrary to principle and should not be followed.
[62] Ai Group submits that the question for determination is whether the distribution of
‘JP2’ and ‘JP3’ resulted in a failure by Peabody to comply with s.174 of the Act. It submits
that the Notice issued by Peabody (ie JP1) is a valid notice and complies with the
requirements of ss.173 and 174 of the Act; Ai Group also submitted that Shape Shopfitters
should not be followed. At paragraph 3.27 of its written submission Ai Group says:
“The purpose of the s.174(1A) amendment was not to provide a blanket restriction on an
employer’s ability to communicate and provide written information to its employees about
[2014] FWCFB 2042
17
bargaining or representation at the same time as issuing an NERR. Indeed there is nothing in
the Explanatory Memorandum or recommendations from the Review Panel that support this
view.”
[63] Ai Group submitted that adoption of Shape Shopfitters would lead to ‘arbitrary,
confusing and uncertain requirements’ about the process for issuing a Notice to employees.
[64] The Minister submits that a Notice that otherwise complies with s.174(1A) in both
content and form is not rendered invalid simply because other material is provided to the
relevant employees at the same time. The Minister submits that the ‘mischief’ which
s.174(1A) seeks to address is directed at alterations to the Notice itself and the provision of
additional material with a Notice should not invalidate a Notice that otherwise complies with
s.174(1A) in both content and form. In circumstances where additional material is provided
with the Notice and that material has the character of being, for example, misleading or
intimidatory, then this will be relevant to the Commission’s assessment of whether the
enterprise agreement had been ‘genuinely agreed’ by the employees. However, it is not a
basis for finding that a Notice has not been given in accordance with the Act.
[65] In circumstances where additional material accompanies a document that complies
with the form and content of Schedule 2.1 a question arises as to how to distinguish between
material accompanying a Notice and material which alters the content of the Notice. In the
course of oral argument counsel for the Minister addressed this question and submitted:
“... one reads what purports to be the notice, and if what purports to be the notice from start to
finish is compliant in form and substance, in our submission, that is it.”22
[66] We agree with the submissions advanced on behalf of the Minister, in three respects.
[67] First, s.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.
Subsection 174(1A) is directed at the form and content of the Notice. It does not require the
Notice to be provided in isolation and to construe the provision in that way would produce
some absurd results, for example, it would prevent an employer from providing employees
with a simple covering letter or an offer of interpreter services. Such a construction would
also give rise to considerable uncertainty, for example, about whether an employer could
merely provide the additional information in a separate envelope to the envelope containing
the Notice, or whether the additional information could be provided at the same time or
whether the employer would need to wait until a later time, and if so how long should the
employer wait.
[68] These problems are avoided if s.174(1A) is interpreted as a means of curing the
mischief to which it was directed, namely, ensuring that the actual Notice is not amended in
content or form from the template provided in Schedule 2.1 of the Regulations. To the extent
that Shape Shopfitters may be said to be inconsistent with our conclusion it is wrong and
should not be followed.
[69] Secondly, where additional material accompanies a document which contains the
content, and is in the form, prescribed in the Regulations, the issue to be determined is what
purports to be the Notice. This is a question of fact.
[2014] FWCFB 2042
18
[70] Thirdly, where additional material is provided with the Notice and that material has
the character of being, for example, misleading or intimidatory, then this will be relevant to
the Commission’s assessment of whether the enterprise agreement had been ‘genuinely
agreed’ by the employees. However, it is not a basis for finding that a Notice has not been
given in accordance with the Act. Section 188 deals with when employees have ‘genuinely
agreed’ to an enterprise agreement. It is set out at paragraph [41] above. To rely on
additional material which is misleading or intimidatory as a basis for finding that the Notice
has not been given in accordance with the Act would be to conflate the issues that arise for
consideration in paragraphs 188(a) and (c). These are two separate requirements and need to
be considered as such. Paragraph 188(a) deals with whether a Notice was given in
accordance with the Act (ie whether the timing, content and form requirements were met).
Any concerns as to whether the employees may have misunderstood their right to be
represented, despite being provided with a valid Notice, fall to be considered under paragraph
188(c). In Ostwald Bros Pty Ltd v CFMEU23 the majority of the Full Bench made the
following observation of section 188 :
‘... 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.’
[71] We now turn to consider what purports to be the Notice in this case.
[72] It is common ground that the three documents (JP1, JP2 and JP3) were stapled
together and given to each of the employees. The issue is whether these three documents
stapled together constituted the purported Notice or whether only JP1 was the purported
Notice. The evidence relevant to this issue is Mr Paterson’s Form 17 statutory declaration of
20 December 2013 and the covering email of the same date; Mr Paterson’s statutory
declaration of 23 January 2014 and Mr Paterson’s oral evidence in the proceedings. The
documentary evidence is referred to earlier in our decision (see paragraphs [49]-[54]).
[73] The Form 17 statutory declaration and covering email support an inference that the
purported Notice consisted of documents JP1, JP2 and JP3.
[74] In his Form 17 declaration Mr Paterson’s response to question 2.3 states that a Notice
was given to each employee and that a ‘copy of the notice given to employees’ was attached
to the declaration. The document attached to the Form 17 declaration consisted of all three
pages of the material provided to the employees (ie JP1, JP2 and JP3). The covering email to
the Form 17 declaration also referred to the attached Notice of Employee Representational
Rights. The only document attached was the three pages provided to the employees.
[75] In his subsequent declaration of 20 January 2014 Mr Paterson seeks to distinguish
between the documents provided to the employees by characterising JP1 as the Notice; JP2 as
an employer’s copy of a bargaining representative nomination form; and JP3 as an
employee’s copy of a bargaining representative nomination form. He describes JP1, JP2 and
JP3 as ‘three separate documents’.
[2014] FWCFB 2042
19
[76] Mr Paterson was cross-examined as to the characterisation of his Form 17 declaration:
“Mr Docking: ... as at 20 December 2013 when you made this statutory declaration, you
were of the view that it was the three-page pack which comprised ‘the attached notice of
employee representational rights’?
Mr Paterson: I’m of the position that the front page of that pack was the notice and the
following pages were two separate documents that had two separate purposes.
Mr Docking: Are you saying that was your view as at 20 December 2013 when you did this
statutory declaration?
Mr Paterson: Yes
Mr Docking: The answer you gave before is simply incorrect, as at 20 December 2013, to
suggest that you did not view the attached notice of employee representational rights as all of
the three pages of the pack, isn’t it?
Mr Paterson: No.”24
[77] We reject Mr Paterson’s evidence about what constituted the purported Notice at the
time he completed the 20 December 2013 Form 17 declaration. Mr Paterson gave
inconsistent evidence and aspects of his evidence gave the impression that he was advocating
Peabody’s case.
[78] As to the inconsistencies in his evidence, during examination in chief he referred to
JP1, JP2 and JP3 as ‘three documents ... stapled together as a pack’25. He made a number of
other references to the three documents constituting a ‘pack’26 and later in cross-examination
Mr Paterson sought to reject the characterisation of the three documents as a ‘pack’:
“Mr Docking: So to make it clear, it’s beyond doubt what you saved as Moorvale Notice of
Employee Representational Rights - that’s the file name - was the three-page pack?
Mr Paterson: I don’t see it as being one set or one pack. It’s three individual documents for
three individual purposes.”27
[79] Later when asked why the bargaining representative nomination forms (JP2 and JP3)
had been attached to the form F17 declaration, he gave the following evidence:
“I recall that you have to do it, I believe. My understanding is you have to do it. That was - -
-
Have to do what?---Lodge the notice to give to employees. I was under the impression you
did have to lodge it, simply because there has been some precedents in the past of companies
doctoring those. So I was under the impression that you had to lodge it with the applications
so that you had - - -”.28
[80] As to Mr Paterson advocating Peabody’s case, this is evidence from two passages in
his evidence:
“Mr Docking: I’m just wanting to clarify, when you make reference to the attached notice of
employee representational rights, that was the three-page pack, as you described in your
evidence today, wasn’t it?
Mr Paterson: No, that’s not how the company sees it. It’s not how I see it. The notice was
the first document in the pack and it was followed by two separate documents.”29
[2014] FWCFB 2042
20
[81] Later in his cross-examination Mr Paterson was asked about the three page PDF
attachment to his Form 17 declaration (ie JP1, JP2 and JP3) he replied:
“Mr Paterson: ... My view and the position of the company is that they are three separate
documents’.30
[82] Mr Paterson’s evidence gave the impression of being crafted to support Peabody’s
case. The same observation may be made of his statutory declaration of 23 January 2014.
[83] In our view the proper inference to be drawn is that the purported Notice in this case
consisted of the three pages given to the employees (ie JP1, JP2 and JP3).
[84] We wish to make it clear that the finding we have made in this case as to what
constitutes the notice turns on the particular facts in this matter. We repeat our earlier
observation (at paragraphs [68] to [70] that s.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. Where additional material accompanies a document which complies
with the form and content of the prescribed Notice the issue to be determined is what purports
to be the Notice. This issue will turn on the evidence and particular circumstances of each
case.
[85] As the Notice includes ‘other content’ it does not comply with s.174(1A) and hence is
invalid. The Notice did not appear to comply with the prescribed Notice in a number of other
respects, however given our conclusion above it is unnecessary for us to deal with those
matters.
[86] We now turn to consider whether Regulation 2.06A(b)(i) requires that an application
for the approval of an enterprise agreement be accompanied by a signed copy of the
agreement including the ‘residential address’ of each person who signs the agreement.
The Regulation 2.06A point
[87] Subsection 185(2)(a) provides that an application for the approval for an enterprise
agreement must be accompanied by ‘a signed copy of the agreement’ and s.185(5) provides
that the Regulations may prescribe requirements relating to the signing of enterprise
agreements. Regulation 2.06A is made pursuant to s.185(5) and relevantly provides:
“(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only
if:
(a) it is signed by:
(i) the employer covered by the agreement; and
(ii) at least 1 representative of the employees covered by the agreement; and
(b) it includes:
(i) the full name and address of each person who signs the agreement; and
(ii) an explanation of the person’s authority to sign the agreement.”
[88] The issue in contention is the meaning of ‘the.. address of each person who signs the
agreement’, in Regulation 2.06A(2)(b)(i). The particular issue is whether ‘address’ means the
persons’ residential address or whether it is sufficient if the persons’ work address is supplied.
[2014] FWCFB 2042
21
[89] The CFMEU submits that giving meaning to every word in Regulation 2.06A(2)(b)(i),
and having regard to the context, the word ‘address’ must mean residential address. It is
submitted that the word ‘each’, in the expression ‘the full name and address of each person
who signs the agreement’, must be given some work to do and if each person who signed the
agreement was simply able to provide the same work address then the word ‘each’ would be
otiose. In support of its contextual argument the CFMEU referred to ss.117 and 711 of the
Act. The CFMEU also contends that non-compliance with Regulation 2.06A(2)(b)(i) goes to
invalidity. In other words if the persons who sign the agreement do not set out their
residential address the application to approve the agreement is invalid.
[90] For the reasons which follow we reject the CFMEU’s contention that the word
‘address’ in Regulation 2.l06A(2)(b)(i) means ‘residential address’.
[91] Peabody, the Ai Group and the Minister reject the CFMEU’s characterisation of the
word ‘address’ in Regulation 2.06A(2)(b)(i) and submit that it is sufficient if the persons
signing the agreement provide their work addresses.
[92] It is not in dispute that when one looks at the Agreement itself every address provided
for an employee is the same, that is, their work address.
[93] ‘Address’ is not defined in the Regulations, the Act or the Acts Interpretation Act
1901 (Cth). Nor does the Explanatory Statement to the Fair Work Amendment Regulations
2009 (No. 3) specifically explain why a bargaining representative’s address is necessary when
signing the enterprise agreement. However, the inclusion of a person’s address would assist
the Commission in the event that it decided to inform itself, in connection with the application
for approval of the agreement, by contacting an employee (or other bargaining representative).
Paragraph 763 of the Explanatory Memorandum to the Fair Work Bill 2008 states in relation
to section 185:
“The powers of FWA enable it to inform itself in relation to the application in such manner as
it considers appropriate (clause 590), including by contacting the employer or employers, their
employees, and bargaining representatives.”
[94] The Macquarie Dictionary Online defines “address” as “a place where a person lives
or may be reached” (emphasis added). It is likely that a business address would be sufficient
for identification purposes, should the Commission need to contact the person who signed the
agreement on behalf of the employees covered by the agreement.
[95] The context tells against the construction advanced by the CFMEU. In this regard
we note that the Regulations make reference elsewhere to an individual’s ‘residential
address’31; ‘postal address’32; and ‘email address’33. The only other provision in the
Regulations that require an individual to provide their address is subregulation
2.09(A)(2)(b)(i) (which deals with requirements for signing variation of enterprise
agreement). The use of these different expressions in the same legislative context suggests
that a different meaning was intended. As Irvine CJ observed in Scott v Commercial Hotel
Merbein Pty Ltd 34,:
“[T]hough it is not to be conclusive, the employment of different language in the same Act
may show that the Legislature had in view different objects”.
[2014] FWCFB 2042
22
[96] It is particularly relevant to note that in the regulations relating to Part 2-4 of the Act
the legislature has chosen to use different expressions. In Regulation 2.04, dealing with how
a notice of employee representational rights is given, subregulation 2.04(3) provides:
“The employer may send the notice by pre paid post to:
(a) the employee’s residential address; or
(b) a postal address nominated by the employee.” (emphasis added)
[97] The legislature could have specified in Regulation 2.06A that bargaining
representatives provide their residential address, given that this phrase is used elsewhere in
regulations pertaining to Part 2-4 of the Act. However, the legislature has only required a
bargaining representative to provide their address. In our view this indicates that the
legislative intention was that a bargaining representative would not be required to provide their
residential addresses.
[98] We are not persuaded by the CFMEU’s submissions in support of the contention that
‘address’ in Regulation 2.06A(2)(b)(i) means residential address. The context does not
support such a proposition. The likely purpose of the provision is that it would assist the
Commission in contacting the signatories to the agreement in the event that it decided to
inform itself in relation to a matter pertaining to the application to approve the agreement.
This purpose would be met by the provision of a work or residential address - either would
provide the Commission with a means of contacting the person.
[99] The CFMEU’s reliance on ss. 117 and 711 does not advance its argument. The use of
the word ‘address’ in those contexts may well mean ‘residential address’, but the context and
legislative purpose of Regulation 2.06A(2)(b)(i) is quite different. The presumption that
words used in legislation should be given a consistent meaning35 is readily rebutted by
reference to changes in context.36
[100] Nor are we persuaded by the submission that unless ‘address’ means ‘residential
address’ the word ‘each’ would be otiose. The word ‘each’ would still have some work to do
- it requires each person who signs the agreement to provide their full name.
[101] It should also be borne in mind that the effect of the CFMEU’s submission is that we
would be implying the word ‘residential’ into Regulation 2.06A. As observed by Northrop
and Pincus JJ in Dallikavak v Minister for Immigration and Ethnic Affairs 37
“...there is a general disinclination manifested in the authorities to make implications in
statutes, unless it is strictly necessary to do so.”38
[102] In the context of this matter we are not persuaded that it is necessary to read ‘address’
to mean ‘residential address’.
[103] Peabody has failed to give a Notice which complies with the content and form
requirements of s.174(1A) and for that reason the application to approve the Agreement must
be dismissed.
PRESIDENT
[2014] FWCFB 2042
23
Appearances:
H.J. Dixon SC and Mr Gotting for the Applicant
B. Docking of Counsel with Mr Anderson and Mr Bukarica for the Construction, Forestry,
Mining and Energy Union
J. E. Murdoch QC for the Minister for Employment on behalf of the Commonwealth
Hearing details:
2014.
Brisbane:
February 27.
Final written submissions:
12 March 2014
Printed by authority of the Commonwealth Government Printer
Price code C, PR549030
[2014] FWCFB 2042
24
JP-1 Schedule 2.1 Notice of employee representational rights (regulation 2.05) Fair Work Act 2009, subsection 174 (6) Peabody Moorvale Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement (Peabody Energy Australia Moorvale Enterprise Agreement 2013) which is proposed to cover employees who work at the Moorvale Mine. 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 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 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. Questions? If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fwc.gov.au, or contact the Fair Work Commission Help Line on 1300 799 675
[2014] FWCFB 2042
25
JP-2 Bargaining Representative Nomination Form Peabody Energy Australia Moorvale Enterprise Agreement 2013 (Employer Form) ..., an employee at the Moorvale coal mine, (employee name) currently covered by the Black Coal Mine Industry Award 2010 have nominated, (bargaining representative's name) to act as my bargaining representative during the negotiations for the Peabody Energy Australia Moorvale Enterprise Agreement 2013. Signed Dated
[2014] FWCFB 2042
26
JP-3 Bargaining Representative Nomination Form Peabody Energy Australia Moorvale Enterprise Agreement 2013 (Nominee Form) mine, currently ...., an employee at the Moorvale coal (employee name) covered by the Black Coal Mine Industry Award 2010 have nominated, (bargaining representative's name) to act as my bargaining representative during the negotiations for the Peabody Energy Australia Moorvale Enterprise Agreement 2013, Signed Dated
[2014] FWCFB 2042
27
1 See Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [14];
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
2 (1998) 194 CLR 355 at [91] per McHugh, Gummow, Kirby and Hayne JJ
3 (2010) 272 ALR 750 at [40]
4 (2005) 228 CLR 294
5 Ibid at [68] per McHugh J; [136] per Gummow J; [173] per Kirby J and [206] per Hayne J
6 Ibid at [68]-[71], also [136] per Gummow J, [173] per Kirby J and [204] per Hayne J. Also see: Corporation of the City of
Enfield v Development Assessment Corporation (2000) 199 CLR 135 at [6], [28] and [32]-[33] per Gleeson CJ,
Gummow, Kirby and Hayne JJ
7 Review Report at p 144
8 AWU, p. 4; SDA p. 50; TCFUA, p. 16.
9 SDA, pp. 51–52; see also TCFUA, p. 15.
10 TCFUA, p. 15.
11 Ai Group, p. 24.
12 [2011] FWAFB 6772
13 [2010] FWA 1605.
14 [2011] FWAFB 6106.
15 [2011] FWAFB 6772 at [41]-[46]
16 Written submissions on behalf of the Minister 18 February 2014 at [10].
17 [2013] FWC 3161
18 [2013] FWC 3161 at [10]-[13]
19 Peabody’s written submission at [3]
20 Fair Work Act 2009 (Cth), s 178.
21 Melian Transport Pty Ltd re Melian Transport Ply Ltd Ente1prise Agreement 2012 [2012] FWA 8975
referring to McDonald's Australia Pty Ltd & Anor [2010] FWAFB 4602.
22 Transcript at [398]
23 [2012] FWAFB 9512 at [80]
24 Transcript at [189]-[190] and [193]. Also see [194]-[201]
25 Transcript at [107]
26 Transcript at [109], [174] and [1843]
27 Transcript at [199]
28 Transcript at [220]-[221]
29 Transcript at [184]
30 Transcript at [199]
31 See subregulations 2.02(3)(a), 2.04(3)(a), 3.13(5)(b)(i), 3.24(3)(a)
32 See subregulations 2.02(3)(b), 2.04(3)(b), 3.13(5)(b)(ii), 3.24(3)(b)
33 See subregulations 2.02(4), 2.02(5), 2.04(4), 2.04(5), 3.13(5)(c)(d), 3.24(4)
34 [1930] VLR 25 at 30; also see O’Sullivan v Barton [1947] SASR 4 and CFMEU v Hadgkiss (2007) 169 FCR 151
35 (See Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J)
36 (See McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643, and Mort v Bradley [1916] SALR 129)
37 (1985) 61 ALR 471, also see Thompson v Goold & Co. [1910] AC 409 at 420 per Lord Mersey and Marshall v Watson
(1972) 124 CLR 640 at 649 per Stephens J).
38 Ibid at 475
