1
Fair Work Act 2009
s.604—Appeal of decision
Australian Maritime Officers’ Union
v
Harbour City Ferries Pty Ltd;
Maritime Union of Australia;
Australian Institute of Marine and Power Engineers
(C2014/8328)
Port authorities
SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT SMITH
COMMISSIONER JOHNS SYDNEY, 15 MAY 2015
Appeal against ex tempore decision and decision [2014] FWCA 9069 of Deputy President
Booth to approve the Harbour City Ferries Maritime Agreement 2014 at Sydney on 12
December 2014 in matter number AG2014/7955 - appeal allowed - decisions below quashed -
application for approval of enterprise agreement refused.
[1] This decision concerns an appeal by the Australian Maritime Officers’ Union
(AMOU) against the approval of an enterprise agreement known as the Harbour City Ferries
Maritime Agreement 2014 (the Agreement).
[2] The Agreement was approved by Deputy President Booth.1 The application for its
approval was filed under s.185 of the Fair Work Act 2009 (Cth) (the Act) by Harbour City
Ferries Pty Ltd (HCF). The Agreement had been made by HCF and its employees who were
in classifications identified in clause 4.3. The AMOU, Maritime Union of Australia (MUA)
and the Australian Institute of Marine and Power Engineers (AIMPE) are covered by the
Agreement. Approval of the Agreement had been opposed by both the AMOU and AIMPE.
There was a hearing before the Deputy President to deal with the grounds of opposition. At
the conclusion of the hearing, the Deputy President announced that she would approve the
Agreement.
[2015] FWCFB 3337
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 3337
2
[3] The key issue we deal with in this decision is whether those parts of the notice of
employee representational rights (NERR) contained in Schedule 2.1 to the Fair Work
Regulations 2009 (the regulations) that are to be populated by an employer, prior to issuing a
NERR, are each part of the mandatory content or form required by s.174(1A)(a) and (c) of the
Act.
[4] In the hearing before us, the AMOU was represented by Mr Howell and HCF by Mr
Shariff. We granted each of these barristers permission to appear pursuant to s.596 of the Act,
as we were satisfied that doing so would enable the appeal to be dealt with more efficiently
taking into account the complexity of matters raised in the grounds of appeal. The MUA was
represented by Mr Neal, its Senior National Legal Officer. Written submissions in support of
the AMOU were filed by AIMPE, however, it did not appear in the hearing before us.
Background and the hearing before the Deputy President
[5] The application for approval of the Agreement was accompanied by a Form F17,
being the employer’s statutory declaration in support of approval. It indicated in answer to
question 2.8 that 3 February 2014 was the last date that the NERR was given to an employee
who will be covered by the Agreement. The MUA filed a Form F18 supporting the approval
of the Agreement. The AMOU and the AIMPE each filed a Form F18 in which they indicated
they opposed approval of the Agreement. The forms also indicated that, in the event the
Agreement was to be approved, each wished to be covered by it.
[6] The Deputy President listed the matter for hearing. In the hearing, the AMOU and
HCF were both legally represented. The MUA also appeared and was represented by Mr
Garrett, Assistant Secretary of that union. On the second day of the hearing, Mr Fallone,
National Organiser with AIMPE, attended.
[7] There were two statements in evidence before the Deputy President. One was of Mr
John Wydell, an Industrial Officer with the AMOU, and the other of Mr Darrin Moy, the
General Manager, People and Culture with HCF. Oral evidence was given by Mr Moy and he
[2015] FWCFB 3337
3
was cross-examined. At the Deputy President's request, Mr Fallone and Mr Garrett were
called to give oral evidence.
[8] A key ground raised by the AMOU for opposing approval of the Agreement was that
the NERR which HCF had given to employees who were to be covered by the Agreement did
not comply with s.174 of the Act. We later refer in more detail to the deficiency in the notice,
but for present purposes, it is adequate to indicate that the NERR did not contain a description
of the employees who are proposed to be covered by the Agreement. The notice indicated that
the employees who were to be covered were those in “Attachment A”. There was no
Attachment A or any other attachment to the NERR. Although HCF had initially asserted
there had been such an attachment, by the second day of hearing it accepted that the NERR
had no Attachment A. It was also agreed that no document purporting to be Attachment A or
describing the classifications of employees proposed to be covered by the Agreement was
provided to employees at or about the time they were provided with the NERR. It was also
not in issue that at the time the NERR was provided to employees there was no document in
existence which purported to be the then proposed “Harbour City Ferries Maritime
Agreement 2014”.
[9] It is not necessary for us to detail all of the matters addressed before the Deputy
President. It is sufficient for the purposes of this appeal to indicate that the transcript makes it
clear the AMOU submitted that the Deputy President could not be satisfied that the
Agreement had been genuinely agreed in terms of s.188 of the Act because HCF had never
issued a NERR in accordance with the Act and regulations. The requirements of s.188(a)(ii)
had not been met.2 As a consequence, the AMOU submitted that the Agreement could not be
approved. In support of its submission, it referred to the Full Bench decision in Peabody
Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (Peabody Moorvale).3
HCF submitted that the NERR complied with the requirements of the Act and regulations and
that the AMOU’s reliance on Peabody Moorvale was “misguided and unhelpful”.4
[10] At the conclusion of the hearing, the Deputy President gave her reasons in transcript
for deciding to approve the Agreement. We will refer only to the relevant key observations
and findings she made. They are as follows:
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4
One of the issues she needed to consider is whether the NERR was consistent with
s.174 of the Act. She referred to what she described as “the wrestle” in relation to
ss.173 and 174. She noted the AMOU’s submission that s.174 must be strictly adhered
to and that the decision in Peabody Moorvale supported its submission.5
The factual circumstances in Peabody Moorvale were not comparable to those in issue
before her. The Deputy President observed that she was “obliged under section 188C
to satisfy myself that there are no other reasonable grounds for believing that the
agreement has not been genuinely agreed by the employees”.6
The question was whether “the absence of attachment A is fatal to the objects of the
Act and the scheme of the Act in empowering and facilitating an employee from
choosing to represent themselves”.7 She said whilst there was no evidence of any
“explicit apprehension of what attachment A meant”, there was also no evidence of
any “confusion”. She said that the absence of the attachment did not cause her to
believe there were reasonable grounds the Agreement had not been genuinely agreed
to.8 The mistake in failing to have an attachment did not mean that employees had not
genuinely agreed.9
The Deputy President said “so I do not think that the scheme of the Act is undermined
by the mistake. Therefore I decided that I will approve the Agreement as of today...”.10
She indicated that she was satisfied each of the requirements of ss.186, 187 and 188 of
the Act as are relevant to the application for approval had been met.
[11] Subsequently, the Deputy President published a decision which was in a short
“standard” form indicating she was “satisfied that each of the requirements of ss.186, 187 and
188 of the Act as are relevant to this application for approval have been met”.11 No additional
reasons for reaching that decision were given.
The provisions of the Act, regulation 2.05 and Schedule 2.1 to the regulations
[12] Section 173 of the Act provides that 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 will
[2015] FWCFB 3337
5
be covered by the agreement and is employed at the notification time for the agreement.
Section 174 deals with the content and form of the notice. It is in these terms:
“174 Content and form of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise
agreement is required to give a notice under subsection 173(1) to an employee.
Notice requirements
(1A) The notice must:
(a) contain the content prescribed by the regulations; and
(b) not contain any other content; and
(c) be in the form prescribed by the regulations.
(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a),
the regulations must ensure that the notice complies with this section.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining
representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before the FWC that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to
represent the industrial interests of the employee in relation to work that will
be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining
representative for the agreement;
the organisation will be the bargaining representative of the employee.
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6
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).”
[13] Regulation 2.05 is the relevant regulation. It reads:
“2.05 Notice of employee representational rights—prescribed form
For subsection 174(6) of the Act, the notice of employee representational rights in
Schedule 2.1 is prescribed.”
[14] It is to be noted that there is no s.174(6) in the Act. This issue was clarified in
paragraph [9] of Peabody Moorvale in these terms:
“[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).” ”
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[15] We reproduce at Annexure A to this decision the terms of the prescribed notice in
Schedule 2.1 of the regulations.
[16] Sections 186 and 188 should also be referred to. Section 186 provides that if an
application for the approval of an enterprise agreement is made, the Commission must
approve the agreement if the requirements set out in that section and s.187 are met. The
relevant requirement here is s.186(2), which provides that the Commission must be satisfied
the enterprise agreement has been genuinely agreed to by the employees covered by it.
Section 188 deals with the considerations to be taken into account when deciding if an
agreement has been genuinely agreed. It is in these terms:
“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.”
Consideration
[17] We deal first with the grounds of appeal which concern the requirements of s.174(1A)
of the Act. The AMOU contends that the Deputy President was in error in that she failed to
consider and give reasons as to whether those parts of the NERR prescribed by s.174(1A),
[2015] FWCFB 3337
8
regulation 2.05 and Schedule 2.1 which are to be populated by an employer prior to issuing
the NERR are part of either or both of the “form prescribed by the regulations” or the “content
prescribed by the regulations”. In the alternative, the AMOU contends that the Deputy
President was in error in deciding that those parts of the NERR prescribed by s.174(1A),
regulation 2.05 and Schedule 2.1 which are to be populated by an employer prior to issuing
the NERR are not part of either or both of the mandatory “form prescribed by the regulations”
or the “content prescribed by the regulations”. In short, the AMOU submits that the Deputy
President failed to deal with, and give reasons for her decision, to reject the AMOU’s
submission about the consequences of the NERR not containing Attachment A or, in the
alternative, if she did rule against the AMOU about this submission she was in error in doing
so.
[18] In respect to the first ground, the AMOU submitted that the reasons given by the
Deputy President do not expressly indicate her ruling on the construction to be given to
s.174(1A) of the Act and the consequences of the NERR not containing a description of the
employees to be covered. She did not rule upon whether she was satisfied that the
requirements of s.188(a)(ii) had been met. Accordingly, the AMOU submits that the failure to
give reasons about what was a key issue before her constitutes appealable error. Associated
with this ground of appeal is a submission that relates to the comments made by the Deputy
President about not being satisfied, in terms of s.188(c), that there were any other reasonable
grounds for believing that the Agreement had not been genuinely agreed. The AMOU
submitted the consideration in that subsection does not arise until a decision is reached about
whether s.188(a)(ii) was complied with.
[19] In support of the alternative ground, the AMOU submitted that if, as can be inferred
from the Deputy President approving the Agreement, she rejected its submission about the
consequences of the NERR not containing a description of the employees to be covered by the
Agreement, she was in error. It submits the NERR was invalid and consequently approval of
the Agreement should have been refused.
[20] We turn to the terms of the NERR which HCF gave to the relevant employees. It is
only necessary for us to reproduce the heading and first paragraph of the notice. It was not in
[2015] FWCFB 3337
9
issue that the remainder complied with the terms of the prescribed notice in Schedule 2.1
which we have attached to this decision. For ease of comparison, however, we will also set
out the heading and first paragraph of the prescribed notice here in the body of this decision.
The prescribed NERR:
“Schedule 2.1 Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174(6)
[Name of employer] gives notice that it is bargaining in relation to an enterprise
agreement ([name of the proposed enterprise agreement]) which is proposed to cover
employees that [proposed coverage].
...”
The NERR given to the HCF employees:
“Schedule 2.1-Notice of Employee Representational Rights
(regulation 2.05)
Fair Work Act 2009, subsection 174(6)
Harbour City Ferries gives notice that it is bargaining in relation to an enterprise
agreement, the Harbour City Ferries Maritime Agreement 2014, which is proposed to
cover those employees of Harbour City Ferries whose classifications appear in
Attachment A.
...”
[21] As we have earlier indicated, the notice did not have an Attachment A. Nor was any
document purporting to be Attachment A given to employees at the time the NERR was given
to them. We observe that although the AMOU concentrated on the absence of the attachment
and the failure to describe the employees who were to be covered, the NERR also departed
from the prescribed notice in that it did not contain the term “to cover employees that”, but
instead contained the words “to cover those employees of Harbour City Ferries...”. The notice
also capitalised each of the words in the title whereas the prescribed notice does not. About
[2015] FWCFB 3337
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these last two observations, we accept they could be described as minor and insignificant,
however, a strict reading of s.174(1A) suggests not even these variations from the prescribed
form are acceptable. Happily, we do not need to dispose of this appeal by reference to these
considerations. It is the absence of any description of the proposed coverage of the Agreement
that we concentrate on.
[22] We commence our consideration by referring to Peabody Moorvale. One issue before
the Full Bench was whether the NERR provided by the employer complied with s.174(1A) of
the Act and, if it did not comply, whether it was necessarily invalid and of no effect. The
NERR given to employees (which was in the prescribed form) had two documents stapled to
it. They were described as a “Nominee Form” and an “Employer Form”.
[23] The Full Bench considered the construction appropriate to be given to the wording of
s.174 (1A) and commented that it uses language in mandatory form and “goes to some lengths
to make it clear there can be no departure from the content or form of the Notice prescribed in
the regulations.”12 It considered the purpose and function of the NERR, the relevant
explanatory memorandum and related recommendations from the report of a Panel which had
been established to review the Act. About one recommendation of that Panel the Full Bench
said:
“[33] ... 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.”
[24] The Full Bench said at paragraph [39] that “[t]he 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...”. They then turned to the consequences of this construction. After
considering ss.173, 181, 186(2) and 188 they said:
“[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
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11
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.”
[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.”
[25] The Full Bench later referred to ss.188(a) and (c) and said at paragraph [70] they were
not to be conflated. They 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
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12
being provided with a valid Notice, fall to be considered under paragraph 188(c). In
Ostwald Bros Pty Ltd v CFMEU 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.” ”
[26] Although we agree with the Deputy President’s observation that the facts in Peabody
Moorvale are different to those in this matter, nonetheless it is clear the decision dealt in detail
with the construction that was to be given to the same provisions of the Act here in
contention. We agree with the AMOU that the Deputy President was required to determine
whether those parts of the NERR prescribed by s.174(1A) of the Act, regulation 2.05 and
Schedule 2.1 that are to be populated by an employer (here the “proposed coverage” part in
particular) are part of either or both of the “form prescribed by the regulations” or the
“content prescribed by the regulations”. She was required to rule whether a valid NERR was
given to employees and, if not, to accept, on the authority of Peabody Moorvale, the
Agreement could not be approved.
[27] In our opinion, the whole of the document that is in Schedule 2.1, including the fields
to be populated by the employer, constitutes the prescribed notice and must therefore comply
with the constraints in s.174(1A). In the first paragraph it contains text that identifies the
subject matter of three fields into which an employer must make entries. It also contains text
which, depending on whether individual agreement-based transitional instruments or a low-
paid authorisation exist, is to be included or excluded. Finally, it contains text which must be
included in all NERRs.
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[28] The italicised words in the first paragraph on the prescribed form in Schedule 2.1
direct an employer to certain content that must be included in a NERR. It must be in the
notice as that is the only way an employee can understand the wording in the NERR “If you
are an employee who would be covered by the proposed agreement” that he or she has the
right to appoint a bargaining representative to represent him or her and about the default
bargaining representative provision which applies to “the work to be performed under the
agreement”.
[29] The terms of the prescribed form necessitate the provision of information so that an
employee is able to assess whether he or she is an employee who would be covered by the
proposed agreement. The employee reading the notice must be able to understand who it is
“who would be covered” by the proposed agreement. That is the purpose of the words in the
first paragraph of the prescribed form “... which is proposed to cover employees that
[proposed coverage]”.
[30] That the proposed coverage may evolve as bargaining progresses does not matter.
Contrary to the submission of HCF, that fact does not mean that when bargaining commences
the employer is not obliged to identify what it is then intending to be the coverage of the
proposed enterprise agreement.
[31] We agree with the AMOU’s submission that if an employer could issue a NERR in
precisely the form of Schedule 2.1 without providing a description of “proposed coverage”
(or for that matter, an entry corresponding to the other italicised words in the first paragraph),
it would make little sense to its recipients and would not assist in alerting employees to their
rights. Construing the words “proposed coverage” as part of the mandatory content facilitates
the legislative purpose of a NERR.
[32] The only scope given to an employer to modify the content of the notice with respect
to the three fields in the first paragraph is to delete the italicised words and put words in the
corresponding space which meet the description of the subject matter. In the case of
“proposed coverage” we accept the Act, regulations and prescribed form do not direct how
the description of proposed coverage is to be given. But that does not mean an employer is at
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liberty to omit to give a description. In this case, the description could have been to list the
classifications to be covered or to indicate the coverage was the same as in clause 5.3 of the
existing enterprise agreement13 (and maybe one new classification which apparently was to be
introduced). But a description needed to be given and it was not.
[33] Contrary to the submission of HCF, we do not believe that the NERR here given by
HCF complied with each of the requirements contained in s.174(1A) of the Act. HCF
contended that so long as the parts to be populated by the employer had some words inserted,
it did not matter that the employer had made a mistake in relation to what was actually
inserted. HCF contended that the Act and regulations do not impose any obligation upon the
employer as to how these parts are to be populated. However, in our opinion, even if this
submission was correct, it does not allow for one of the fields to contain no required
information. Nor is this a case of an inconsequential misdescription of the proposed coverage;
there was no description.
[34] HCF submitted that unlike other parts of the NERR in respect of which the regulations
prescribe the precise content to be included, the legislature left it to the employer to determine
the content of the variables notated by the italicised portions of the notice. An omission or
mistake in what was put into the notice was not intended to result in its invalidity. It submits
its construction of s.174(1A) is supported by the explanatory memorandum that accompanied
the bill that introduced the section. In fact, both the AMOU and HCF submitted that the
explanatory memorandum supported the construction of the section for which they contended.
[35] We turn to the relevant extract from that memorandum. It is in these terms:
“Part 5 - Notice of employee representational rights
Fair Work Act 2009
...
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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.
148. In other words, if the notice prescribed in the regulations requires an employer to
insert or omit certain information then the employer is able to do this, without
affecting the validity of the notice. The notice currently prescribed in the regulations
requires an employer to insert into the notice:
the name of the employer
the name of the proposed enterprise agreement
the proposed coverage of the agreement
the prescribed content if the agreement is not an agreement for which a low
paid bargaining authorisation applies
the prescribed content if a low paid bargaining authorisation applies to the
agreement
the prescribed content if the employee is covered by an individual
agreement-based transitional instrument, and
the contact number for the FWA Infoline.
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149. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 8 of
Schedule 3 provides for these amendments made by Part 5 of Schedule 4 to apply in
relation to notices of employee representational rights issued after commencement of
this Part. Item 8 also ensures that regulations made under subsection 174(6) as in force
immediately before commencement of Part 5 continue in force as if they were made
for the purposes of subsection 174(1A).”
[36] On balance, we think the above extract supports the AMOU’s argument that the
Parliament intended that those parts of the form in Schedule 2.1 that are to be populated by an
employer are part of the prescribed content and form. The entries are ones which, in terms of
paragraph 147, the regulations require an employer to insert or omit. Paragraph 148 indicates
“[t]he notice currently prescribed in the regulations requires an employer to insert into the
notice: ... the proposed coverage of the agreement.”
[37] In our opinion, as there was no description of the “proposed coverage” of the
Agreement in the NERR, HCF had never issued a valid notice. The consequence of failing to
give employees a NERR which complies with the content and form requirements of
s.174(1A) is that the Deputy President was not able to approve the Agreement. In doing so,
she was in error.
[38] We accept that when a NERR contains, say, a minor typographical error, there may
remain some room for judgment by a Commission Member as to whether it renders the notice
invalid. We do not need to consider this possibility further in this appeal. For the reasons we
have given, the omission here was not minor or insignificant.
[39] We have considered the submissions of HCF that the construction for which the
AMOU contends results in an outcome that is not as fair as the objects of Part 2-4 envisage. It
allows the AMOU to have waited right up to the time of filing the Agreement for approval to
raise an objection it could have raised many months earlier. HCF also identified numerous
discretionary considerations in support of why the Agreement should be approved. It
submitted that, other than the deficiency in the NERR, there was no basis to suggest the
Agreement was not genuinely agreed to by employees. If the relevant test was substantial
[2015] FWCFB 3337
17
compliance with the prescribed notice, or if the Commission had a discretion to accept as
valid a NERR which did not comply with s.174(1A), regulation 2.05 and schedule 2.1, these
submissions would all have merit. However, these discretionary considerations do not
persuade us that the construction of those provisions for which the AMOU contends should
not be accepted.
[40] We can deal briefly with the ground of appeal which relates to the finding made by the
Deputy President with reference to s.188(c) of the Act. In giving her reasons for decision, she
referred to s.188(c) and said she was not satisfied there were any other reasonable grounds for
believing that the Agreement had not been genuinely agreed to by the employees to be
covered by it. As is clear from the extract from Ostwald Bros Pty Ltd v CFMEU,14 which was
approved by the Full Bench in Peabody Moorvale, s.188(c) is not to be considered until after
a finding is made by reference to s.188(a)(ii). The Deputy President did not give any reasons
why she was satisfied the requirements of s.188(a)(ii) had been met. Accordingly, the AMOU
submits that the failure to give reasons about what was a key issue before her constitutes
appealable error. We agree. Although the reasons need not have been lengthy, nonetheless
they should have explained why the Deputy President rejected the argument of the AMOU.
[41] As we have found the NERR was invalid, it follows there was no occasion for s.188(c)
to be considered. A finding under that section could not cure the invalidity. The Agreement
should not have been approved.
[42] A supplementary note was filed by HCF after the appeal hearing. It related to whether
the Act imposed any requirements on an employer about the need to issue a NERR upon a
change to the scope of a proposed enterprise agreement. The note also addressed an associated
issue about whether there is a requirement for an employer to issue a NERR to employees
who commenced employment after the notification time referred to in s.173(2). We have
considered the matters addressed in that note. They do not persuade us that the conclusion we
have reached in relation to the grounds of appeal we have considered is incorrect.
[43] After we had heard the appeal, the Commission published a document titled “Guide -
notice of employee representational rights”. Its purpose was to provide information to parties
[2015] FWCFB 3337
18
about the completion of a NERR. The guide contained a reference to Peabody Moorvale. It
also contained a table which explained how to complete the notice and an example of a
completed notice. We decided that we would bring the guide to the parties’ attention and give
them an opportunity, should they so wish, to make any additional submissions. It was
understood that the grounds of appeal in this matter would be decided on the basis of the
submissions made by the parties; however, we thought it appropriate to bring the guide to
their attention.
[44] We have considered the submissions filed by the AMOU and HCF. It is not necessary
for us to discuss them in detail. In effect, each maintained the position they had contended for
in the appeal hearing in relation to the appropriate construction to be put on the relevant
provisions of the Act and regulations. Submissions about additional matters not earlier raised,
and not in response to the invitation to comment on the guide, have not been taken into
account. To the extent the submissions of the AMOU, in particular, seized upon the guide to
identify possible additional arguments it might have pursued, we have not taken them into
account.
[45] In light of our decision about the two grounds of appeal we have dealt with, we do not
propose to deal with any of the other grounds of appeal.
Conclusion
[46] No issue was taken with the standing of the AMOU to file this appeal. We accept the
AMOU is, in terms of s.604(1) of the Act, a person aggrieved by the decision of the Deputy
President.
[47] We have decided that it is in the public interest to grant permission to appeal. The
grounds of appeal raise considerations not directly considered in Peabody Moorvale about the
content and form of a NERR. We were not taken to any Full Bench decision which had
addressed the issues enlivened by the grounds of appeal in this matter. They are issues which,
in our opinion, are of importance and general application.
[2015] FWCFB 3337
19
[48] For the reasons we have given, we have decided the Deputy President was in error in
approving the Agreement. We allow the appeal. We have decided to quash the approval of the
Agreement. We have considered for ourselves whether the Agreement can be approved and,
for the reasons we have given, we have decided it cannot. The application for approval of the
Agreement is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr A Howell, counsel, with Mr J Wydell for the Australian Maritime Officers’ Union.
Mr Y Shariff, counsel, with Ms R Farrar for Harbour City Ferries Pty Ltd.
Mr A Neal for the Maritime Union of Australia.
[There was no appearance for the Australian Institute of Marine and Power Engineers.]
Hearing details:
Sydney.
2015.
February 18.
Final written submissions:
Australian Maritime Officers’ Union: 24 March 2015.
Harbour City Ferries Pty Ltd: 31 March 2015.
[2015] FWCFB 3337
20
Annexure A
Schedule 2.1 Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174 (6)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement
([name of the proposed enterprise agreement]) which is proposed to cover employees that
[proposed coverage].
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be
covered by the agreement that sets the wages and conditions of those employees for a period
of up to 4 years. To come into operation, the agreement must be supported by a majority of
the employees who cast a vote to approve the agreement and it must be approved by an
independent authority, Fair Work Commission.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for
the agreement or in a matter before Fair Work Commission about bargaining for the
agreement.
You can do this by notifying the person in writing that you appoint that person as your
bargaining representative. You can also appoint yourself as a bargaining representative. In
either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low-paid authorisation applies — include:]
If you are a member of a union that is entitled to represent your industrial interests in relation
to the work to be performed under the agreement, your union will be your bargaining
representative for the agreement unless you appoint another person as your representative or
you revoke the union’s status as your representative.
[If a low-paid authorisation applies to the agreement — include:]
Fair Work Commission has granted a low-paid bargaining authorisation in relation to this
agreement. This means the union that applied for the authorisation will be your bargaining
representative for the agreement unless you appoint another person as your representative, or
you revoke the union’s status as your representative, or you are a member of another union
that also applied for the authorisation.
[if the employee is covered by an individual agreement-based transitional instrument —
include:]
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual
transitional employment agreement (ITEA) or a preserved individual State agreement, you
may appoint a bargaining representative for the enterprise agreement if:
[2015] FWCFB 3337
21
the nominal expiry date of your existing agreement has passed; or
a conditional termination of your existing agreement has been made (this is an agreement
made between you and your employer providing that if the enterprise agreement is
approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to
either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the
Fair Work Commission Infoline on [insert number].
Printed by authority of the Commonwealth Government Printer
Price code C, AE411780 PR567432
1 [2014] FWCA 9069.
2 PN54, PN169-71.
3 [2014] FWCFB 2042.
4 HCF’s submissions dated 10 December 2014, although not marked as an exhibit, are referred to at PN496 in the final
submissions.
5 PN546, PN554.
6 PN555. The transcript records the reference was to “section 188C”, but we think it more likely the Deputy President was
referring to s.188(c).
7 PN556.
8 PN557.
9 PN558-559.
10 PN560.
11 [2014] FWCA 9069, [4].
12 Ibid [18].
13 Sydney Ferries Maritime (AMOU and MUA) Enterprise Agreement 2012 (AE891796).
14 [2012] FWAFB 9512.
http://www.fairwork.gov.au/
