1
Fair Work Act 2009
s.604 - Appeal of decisions
Serco Australia Pty Limited
v
United Voice and the Union of Christmas Island Workers
(C2015/4789)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER RIORDAN SYDNEY, 2 SEPTEMBER 2015
Appeal against decision [2015] FWC 4643 of Commissioner McKenna at Sydney on 10 July
2015 in matter number AG2015/3697.
[1] Serco Australia Pty Limited (Serco) has applied for permission to appeal and appealed
a decision of Commissioner McKenna issued on 10 July 20151 (Decision) in which the
Commissioner dismissed an application for approval of an enterprise agreement, the Serco
Immigration Services Agreement 2015 (Agreement). The application was dismissed on the
basis that the notice of representational rights (Notice) issued by Serco to its employees
pursuant to s.173 of the Fair Work Act 2009 (FW Act) did not conform to the prescribed form
of the notice, did not therefore comply with the requirements of s.174(1A), and was invalid as
a result. Serco contends that the Commissioner erred in reaching that conclusion, and the error
resulted in a failure to exercise her jurisdiction in respect of the application to approve the
Agreement. The respondent unions support Serco’s appeal.
[2] Senior Counsel for Serco identified the only disconformity between the Notice and the
prescribed form (which is set out in Schedule 2.1 of the Fair Work Regulations 2009) as
being that where the prescribed form refers to the “Fair Work Commission”, the Notice
referred to “Fair Work Australia”. By way of background, this Commission as established by
the FW Act was originally named “Fair Work Australia”. The name of the Commission was
changed to the “Fair Work Commission” as a result of the Fair Work Amendment Act 2012
(Amendment Act). This appears to be the only disconformity dealt with in the Decision. We
will therefore proceed on the basis that this is the only disconformity.
[3] The reasoning in the Decision concerning the validity of the Notice was as follows:
“[8] While I accept the matters as to the particular notice considered in Peabody
Moorvale2 differed from those arising in relation to the notice in the application before
me, the Full Bench nonetheless squarely concluded that failing to give a compliant
1 [2015] FWC 4643
2 Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042; (2014) 242 IR 210
[2015] FWCFB 5618
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 5618
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notice means that the Commission “cannot” approve an enterprise agreement. Part of
the decision read:
‘[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.
…’
[9] I have considered the submissions concerning s.575(1) of the Act and s.25B(1)(b)
of the Acts Interpretation Act. Although references to re-named bodies are to be
construed in the usual way in matters involving interpretation, s.174(1A) of the Act
refers specifically, and in mandatory language, to (actual) content and form. I have
considered the submissions concerning Project Blue Sky and also the practical
insignificance of the differences between the old and current versions of the notices.
[10] If the Act, as considered in Peabody Moorvale, allowed latitude such that there
was scope for discretion in relation to the particular notice issued by Serco, I would
exercise it. However, as the notice issued by Serco does not, for example, contain the
content prescribed by the Regulations the Commission cannot approve the
agreement.”
[4] Serco advanced a number of submissions in support of its appeal, but it is only
necessary for us to consider its primary submission, namely that the Commissioner erred in
not treating s.25B(1)(b) of the Acts Interpretation Act 1901 as being applicable to the Notice.
[5] The application of the Acts Interpretation Act to the FW Act is specifically dealt with
in s.40A of the FW Act, which provides:
Application of the Acts Interpretation Act 1901
(1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.
(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply
to this Act.
[6] As at 25 June 2009, s.25B(1)(b) of the Acts Interpretation Act provided (underlining
added):
(1) Where an Act alters the name of a body (whether or not the body is incorporated)
or alters the name of an office, then, unless the contrary intention appears:
. . .
(b) in any Act, in any instrument under an Act, in any award or other industrial
determination or order or any industrial agreement, in any other order (whether
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/
[2015] FWCFB 5618
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executive, judicial or otherwise), in any contract, in any pleading in, or process
issued in connection with, any legal or other proceedings or in any other
instrument, a reference to the body or the office under the former name shall,
except in relation to matters that occurred before the alteration took place, be
construed as a reference to the body or the office under the new name.
[7] The underlined words above were deleted as a result of the Acts Interpretation
Amendment Act 2011. However that amendment did not appear to have been intended to
change the effect of the provision. Section 2(1) of the Acts Interpretation Act currently
provides that the Act applies to all Acts, but s.2(2) provides that “the application of this Act or
a provision of this Act to an Act or a provision of an Act is subject to a contrary intention”.
The amendment to s.25B(1) appears to have been merely tidying up in the drafting of the Acts
Interpretation Act.
[8] There is no doubt that, in the absence of a contrary intention expressed in the FW Act,
s.25B(1)(b) as it stood at 25 June 2009 would be applicable to a notice of employee
representational rights issued pursuant to s.173 of the FW Act because it is stated to apply to
“any other instrument”. The effect of s.25B(1)(b), if applicable, would be to require the
Notice to be construed as if the references to “Fair Work Australia” were in fact references to
the “Fair Work Commission”. The critical question therefore is whether anything in the FW
Act expresses a contrary intention such as to make s.25B(1)(b) not applicable to the Notice.
[9] Although it is not expressly stated in the Decision, the Commissioner appears to have
concluded that s.174(1A), which was added to the FW Act as a result of the Amendment Act,
exhibited a contrary intention. Section 174(1A) provides:
(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.
[10] In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union3 a
Full Bench of this Commission analysed the meaning of s.174(1A) and the consequence of
non-compliance with it. The Full Bench’s conclusions were as follows:
“[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.’
3 Ibid
[2015] FWCFB 5618
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[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.”
[11] As the reasoning in the Decision quoted above demonstrates, the Commissioner relied
upon the conclusions stated in Peabody Moorvale to conclude that s.25B(1)(b) of the Acts
Interpretation Act did not operate with respect to a notice of representational rights. However,
we do not consider that Peabody Moorvale is to be read as supporting that conclusion. The
application of s.25B(1)(b) to a notice of employee representational rights was not considered
in that decision. While Peabody Moorvale is certainly authority for the proposition that the
effect of s.174(1A) of the FW Act is to require that such a notice strictly comply with
prescribed form, it must be borne in mind that if s.25B(1)(b) of the Acts Interpretation Act
does apply to the Notice here, then the consequence is that the Notice does comply with the
prescribed form.
[12] It may be accepted that the requirement for strict compliance contained in s.174(1A),
considered in isolation, is on one view an indicator that it was not intended that a defective
notice of employee representational rights could be “saved” by the application of s.25B(1)(b)
of the Acts Interpretation Act. However we consider that there are three stronger indicators
elsewhere in the legislative scheme which indicate that the operation of s.25B(1)(b) was not
intended to be excluded.
[13] The first is s.40A of the FW Act, which we have earlier set out. It constitutes an
express statement that the Acts Interpretation Act as it stood at 25 June 2009 was to apply to
the FW Act generally. It would be difficult to conclude therefore that s.25B(1)(b) did not
apply to any particular provision in the FW Act absent an express statement to that effect.
[14] Second, s.575(1) of the FW Act provides:
(1) The body known immediately before the commencement of this subsection as Fair
Work Australia is continued in existence as the Fair Work Commission.
Note: See also subsection 25B(1) of the Acts Interpretation Act 1901.
[15] Section 575(1) in its current form is the result of amendments contained in Schedule 9
of the Amendment Act to effect the name change to this Commission. The note attached to
s.575(1) was introduced at the same time, and indicates an intention that s.25B(1) apply
generally in respect of the name change. While the note may not be part of the Act as such4, it
is material which under s.15AB of the Acts Interpretation Act may be taken into account in
resolving any ambiguity with respect to s.174(1A).
[16] Third, in Schedule 11, “Application, transitional and saving provisions”, of the
Amendment Act, Part 9 contains various transitional provisions associated with the change of
the name of the Commission. Part 9 ends with item 30, which provides:
4 Section 13 of the Acts Interpretation Act, which provides that all material in an Act from and including the first section to
the end of the last section or schedule is part of the Act, was not in effect as at 25 June 2009. Under s.40A of the FW Act it
therefore does not apply to the FW Act.
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[2015] FWCFB 5618
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30 Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act
1901 not limited
This Part and Schedule 9 to the amending Act do not limit the operation of
section 7 or subsection 25B(1) of the Acts Interpretation Act 1901.
[17] Item 30 again exhibits an intention that s.25B(1) apply generally to the FW Act in
respect of the name change.
[18] As earlier stated, it was the Amendment Act which added s.174(1A) to the FW Act.
The fact that the same Act expressed a general intention that s.25B(1)(b) of the Acts
Interpretation Act apply in respect of the name change gives rise to a strong inference that
s.174(1A) was not intended to exclude the application of s.25B(1)(b) to notices of employee
representational rights.
[19] We therefore conclude that s.25B(1)(b) of the Acts Interpretation Act as it was at 25
June 2009 operated in respect of the Notice such as to render it compliant with s.174(1A). We
note that the conclusion that s.25B(1)(b) may apply to a notice of employee representational
rights in this way is not a novel one; a number of single member decisions in this Commission
have stated the same conclusion.5 The decision of the Commissioner was therefore, with
respect, in error.
[20] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision is quashed.
(4) The application for approval of the Agreement is remitted to Commissioner
McKenna for determination on the basis that the Notice complies with
s.174(1A) and is valid.
VICE PRESIDENT
Appearances:
J. J. Fernon SC of counsel with P. Brown solicitor for Serco Australia Pty Limited
S. Bull for United Voice and the Union of Christmas Island Workers
5 See Comselec Group Pty Ltd [2014] FWCA 3468; Preston Motors (Essendon) Pty Ltd [2014] FWCA 4891; Jemena Asset
Management Pty Ltd [2014] FWCA 3892; Precept Services Business Trust ITF Precept Services Pty Ltd [2014] FWCA
3371; Bromar Electrical Services (Aust) Pty Ltd [2014] FWCA 3331; Ker-Dar Electrics Pty Ltd [2014] FWCA 3330; UBOS
Australia Pty Ltd [2014] FWCA 3143; PROAB Electrical Pty Ltd [2014] FWCA 3137
OF THE FAIR WORK MISSION THE
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s25b.html
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/
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http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s25b.html
[2015] FWCFB 5618
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Hearing details:
2015.
Sydney:
21 August.
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