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Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
DP World Melbourne Limited
(AG2015/6659)
COMMISSIONER CAMBRIDGE SYDNEY, 27 NOVEMBER 2015
Application for approval of the DP World Melbourne Enterprise Agreement 2015.
[1] An application has been made for approval of an enterprise agreement known as the
DP World Melbourne Enterprise Agreement 2015 (the Agreement). The application was
made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DP World
Melbourne Limited (the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Melbourne on 12 November 2015. The application
included a Statutory Declaration of Aimee Quintal made on behalf of the Employer and dated
12 November 2015 (the Declaration). The Declaration stated that the Agreement was
allegedly made on 4 November 2015. Therefore the application appeared to have been lodged
within the 14 day time limit established by subsection 185 (3) of the Act.
[3] The Agreement document that was provided with the application was signed on behalf
of the Employer and also on behalf of the Maritime Union of Australia (the MUA). The MUA
provided a Statutory Declaration as an employee organisation in relation to the application
which supported the application, agreed with the Declaration, and gave notice under s.183 of
the Act that it wants the MUA to be covered by the Agreement.
[4] The Declaration relevantly provided information about the voting for the Agreement
conducted in accordance with s.181 of the Act. Importantly, the Declaration stated that of the
332 valid votes that were cast, only 25 voted to approve the Agreement. Therefore there was
not a majority of those employees who cast a valid vote to approve the Agreement.
[5] The Agreement was not made in accordance with s. 182(1) of the Act. An application
made under s.185 of the Act must, except in the case of a greenfields agreement, be made in
respect to an agreement that has been made in accordance with s.182 of the Act. The
application is invalid and must be dismissed.
[6] I also note that there were some deficiencies with the Notice of Employee
Representational Rights (NERR) that was provided with the application. A NERR must, inter
alia, contain the content prescribed by the Regulations, not contain any other content, and be
in the form prescribed by the Regulations.
[2015] FWC 8235
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 8235
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[7] In this instance the NERR contained other content and it incorrectly referred to the DP
World Melbourne Enterprise Agreement 2014. Although these deficiencies may be considered
to be insignificant, a Full Bench of the Commission issued a Decision on 2 April 20141 which
dealt with inter alia, the operation of the provisions of section 174 of the Act. Importantly this
Full Bench Decision included the following extracts:
“[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.” [emphasis added]
[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.”
[8] A more recent Full Bench Decision of the Commission2 has dealt with the operation of
the Acts Interpretation Act 1901 in respect to certain content of a NERR which did not result
in any invalidity of a NERR which did not strictly comply with the Regulations. In this
instance the alterations to the NERR were minor but they may not be capable of being
accommodated via the operation of the Acts Interpretation Act 1901 or otherwise avoid
invalidity.
[9] In any event, the question of strict compliance of the NERR does not require further
contemplation because the application was made in respect to an agreement that was not made
in accordance with s.182 of the Act. The application is therefore invalid. Accordingly the
application is dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code A, PR574500
1 Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.
2 Serco Australia Pty Limited v United Voice and Union of Christmas Island Workers [2015] FWCFB 5618.
