[2011] FWAFB 7214 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Industries not otherwise assigned | |
SENIOR DEPUTY PRESIDENT WATSON |
MELBOURNE, 27 OCTOBER 2011 |
Appeal against decision [[2011] FWAA 6104] of Commissioner Blair at Melbourne on 8 September 2011 in matter number AG2011/1454 - Permission granted - Appeal upheld - Approval decision varied.
[1] This is an appeal by RotoMetrics Australia Pty Ltd T/A RotoMetrics (RotoMetrics) in relation to a decision by Commissioner Blair of 8 September 2011, 1 in which the Commissioner approved the Rotometrics Australia Pty Limited Production and Manufacturing Employees Enterprise Agreement 2011 (the Agreement). Specifically, the appeal is against the inclusion in the decision of a note in paragraph 3, in accordance with s.201(2) of the Fair Work Act 2009 (the Act), that the Agreement covers the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU).
[2] Paragraph 3 of Commissioner Blair’s decision states:
“[3] The ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU), being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.”
[3] RotoMetrics submitted that Commissioner Blair erred by including paragraph 3 in his decision on the basis that the AMWU did not give RotoMetrics, as the employer covered by the Agreement, a copy of the written notice stating that the AMWU wanted the Agreement to cover it before the Agreement was approved by Commissioner Blair. RotoMetrics seeks that paragraph 3 of Commissioner Blair’s decision be quashed.
[4] At the conclusion of the hearing of the appeal, on 19 October 2011, we announced that:
● We grant permission to appeal and uphold the appeal;
● We would issue an order varying the decision of Commissioner Blair, by deleting the note in paragraph 3; and
● We would publish our reasons in due course.
[5] These are our reasons.
Relevant Statutory Provisions
[6] Section 183 of the Act provides an entitlement for an employee organisation to be covered by an enterprise agreement where certain preconditions are met. Section 183 provides:
“(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give FWA a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to FWA, and a copy given to each employer covered by the enterprise agreement, before FWA approves the agreement.”
[7] Section 201 of the Act requires that a decision approving an enterprise agreement must note certain matters. Relevantly, s.201(2) provides:
“If:
(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and
(b) FWA approves the agreement;
FWA must note in its decision to approve the agreement that the agreement covers the organisation.”
[8] A note in the decision in accordance with s.201(2) is of some significance because s.53(2)(a) of the Act provides that an enterprise agreement covers an employee organisation, in the case of an enterprise agreement that is not a greenfields agreement, if Fair Work Australia has noted in its decision to approve the agreement that the agreement covers the organisation. Coverage of an employee organisation by an agreement under the Act confers both rights 2 and obligations3 upon the employee organisation concerned.
The Issue in the Appeal
[9] There is agreement as to the following issues:
● The AMWU was a bargaining representative in respect of the Agreement;
● The AMWU provided written notice to Fair Work Australia, by filing in Fair Work Australia on 5 September 2011, a Form F22 Notice for Employee Organisation to be Covered by Enterprise Agreement (the Form F22);
● The Form F22 was given prior to the approval of the Agreement by Commissioner Blair on 8 September 2011; and
● A copy of the Form F22 was not given to RotoMetrics prior to the approval of the Agreement.
[10] The issue for consideration in the appeal is whether Commissioner Blair erred by including the note recorded in paragraph 3 of his decision in circumstances where the AMWU failed to give RotoMetrics a copy of the Form F22 prior to the approval of the Agreement.
[11] In this respect, RotoMetrics submitted that Commissioner Blair erred in that:
1. The AMWU did not provide it with a copy of the Form F22;
2. The AMWU has thereby failed to comply with s.183(2) of the Act; and
3. The requirement under s.183(2) of the Act for a Form F22 to be served on each employer to be covered by an enterprise agreement prior to such agreement being approved is a mandatory requirement and Fair Work Australia is unable to waive compliance with this requirement or exercise any discretion in this regard. 4
[12] The AMWU submitted that Commissioner Blair did not err by including paragraph 3 in his decision. It submitted that by including paragraph 3 Commissioner Blair gave proper effect to the requirement within s.201(2) of the Act, which requires that a note be made in an approval decision that the agreement covers an employee organisation which has given notice under s.183(1) that the organisation wants the enterprise agreement to cover it. It submitted that the statutory requirement in s.201(2) refers exclusively to s.183(1) and s.183(2) plays no role.
[13] Further, the AMWU submitted that s.183(2) is procedural so that where a failure to comply with it produces no injustice and where the substantive requirements for having an agreement cover an organisation are met, i.e. the organisation was a bargaining representative in relation to the agreement, non-compliance with s.183(2) should not be fatal to an organisation’s coverage as determined by s.201(2) of the Act. The AMWU relied on a Full Bench decision in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Inghams Enterprises Pty Ltd 5 (Inghams) to support a submission that partial compliance with a statutory requirement is sufficient, so long as non-compliance does not render the act invalid and no injustice results and the non-compliance is not at odds with the purpose of the statutory provisions.
Consideration
[14] There was no information before Commissioner Blair to suggest whether a copy of the Form F22 was or was not provided to RotoMetrics. It appears that Commissioner Blair presumed that the AMWU had acted in accordance with the note in the Form F22, which requires service of the form on the employer. It was reasonable for Commissioner Blair to do so.
[15] However, it is accepted that the AMWU did not provide a copy of the Form F22 to RotoMetrics prior to the approval of the Agreement, despite the requirement in s.183(2) that written notice must be given to Fair Work Australia, and a copy given to each employer covered by the enterprise agreement, before Fair Work Australia approves the agreement.
[16] The question which arises for determination is the effect of s.183(2) in relation to the requirement placed upon Members of Fair Work Australia in s.201(2) of the Act.
[17] Section 183(1) of the Act provides employee organisations, which are bargaining representatives in relation to an agreement lodged for approval, with the option of giving Fair Work Australia a written notice stating that the organisation wants the enterprise agreement to cover it. Section 183(2) qualifies the operation of s.183(1) in relation to the written notice, when given, requiring that the notice must be given to Fair Work Australia, and a copy given to each employer covered by the enterprise agreement, in each case, before Fair Work Australia approves the agreement.
[18] The AMWU’s submission that s.201(2) of the Act relates solely to s.183(1) gives s.183(2) no work to do in respect of the giving of a notice to be covered or agreement approval more broadly or in any other respect so far as we are able to ascertain, whether in relation to the giving of a copy of a notice to an employer or in relation to the time at which a notice is required to be given. In our view, s.183 must be read as a whole, with s.183(2) setting out conditions in respect of the giving of a written notice. Such a reading of s.183 gives s.183(2) a statutory purpose, consistent with a purposeful interpretation of the statutory provisions.
[19] We also note that our approach in which s.183(2) of the Act prescribes conditions in relation to the giving of notice under s.183(1), thereby incorporating the temporal requirement in s.183(2) for the giving of a notice prior to the approval of the agreement, is consistent with the language of s.201, in which an employee organisation “has given” notice, at which point Fair Work Australia must note in its decision to approve the agreement that the agreement covers the organisation.
[20] We do not accept the characterisation of the requirement to give a copy of the written notice to each employer covered by the agreement before approval as a procedural requirement. Section 183(2) of the Act contains substantive requirements, setting out conditions which must be satisfied in respect of a written notice stating that the organisation wants the enterprise agreement to cover it, which are a pre-condition to the requirement in s.201(2) of the Act upon Fair Work Australia to note in its decision to approve an agreement that the agreement covers the organisation. Those requirements, as set out in the Explanatory Memorandum, at paragraph 754, are:
“Subclause 183(2) provides that an employee organisation must give the notice that it wants to be covered by the agreement to FWA before FWA approves the agreement. A copy of the notice must be given to each employer covered by the agreement before FWA approves the agreement.”
[21] The Inghams decision relied upon by the AMWU considered whether a notice provided to meet the requirement within provisions in Part 2-4 of the Act to take all reasonable steps to give the notice of the right to be represented by a bargaining representative to each relevant employee was invalid or affected the making and approval of the agreement made in that case. The particular notice in question, provided to one employee, did not include the qualification set out in item 2(3) of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and an additional paragraph in Schedule 2.1 Regulation 2.05, made under the Fair Work Regulations 2009.
[22] The Full Bench found that, despite the omission, the notice still notified the employee in question of their right to appoint a bargaining representative and did not affect the legislative entitlement of an employee covered by an individual agreement-based transitional instrument to appoint a bargaining representative. The Full Bench found that the notice met the purpose of the provisions in Part 2-4 of the Act of providing the employee with notice of their representational rights.
[23] The Inghams decision concerned partial non-compliance with the terms of the notice but found that the notice complied with the substantive purpose of the statutory provisions - to provide notice to employees of their representational rights. In the circumstances before Commissioner Blair there was no compliance at all with the statutory requirement and no meeting at all of the purpose of the provision to provide the employer with notice, prior to the approval of the Agreement, that the AMWU wanted to be covered by the Agreement.
Conclusion
[24] In the circumstances where the giving of notice is subject to the requirements in s.183(2) of the Act and one of those requirements - the provision to RotoMetrics by the AMWU of a copy of the Form F22 to be covered prior to the approval of the Agreement - has not been met, a precondition for the recording of a note in accordance with s.201(2)(a) in paragraph 3 of Commissioner Blair’s decision was not met. As a result, the Commissioner erred in including a note, in paragraph 3 of his decision, that in accordance with s.201(2) of the Act, the Agreement covers the organisation.
[25] Given the error, which constitutes an excess in the exercise of jurisdiction, we grant permission to appeal and uphold the appeal. We will issue an order varying the decision of Commissioner Blair, by deleting the note in paragraph 3.
[26] We have considered the form of order to give effect to our decision. This might be achieved by a variation to remove the final sentence of paragraph 3 of Commissioner Blair’s decision, which contains the note: “In accordance with s.201(2) of the Act I note that the Agreement covers the organisation”. However, to avoid the possibility that the preceding sentence in paragraph 3 might be taken to be a note under s.201 of the Act, we think the safer course is to vary the decision by deleting paragraph 3 in its entirety.
An alternate means of rectifying error, defects or irregularity
[27] We note that an error of the type we have identified in the decision of Commissioner Blair, in the circumstances in which it arose, might be capable of rectification in a more timely and efficient manner through an application under s.602 of the Act, with lesser cost to the parties to the agreement and organisations seeking to be covered by an agreement.
[28] Section 602 provides:
“(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).
(2) FWA may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.”
[29] Section 602 is intended to be a statutory analogue of the “slip rule” used by superior courts to correct certain errors in orders. 6 It must be applied with caution7 and only in circumstances in which the use of the “slip rule” is permissible:8
[30] The need for caution in the use of s.602 of the Act is reinforced by s.603, which excludes from the substantive power of Fair Work Australia to vary or revoke a decision made by it under this Act “a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements)”, 10 which includes, in Division 4 of Part 2-4, a decision to approve an enterprise agreement and the matters a decision must note (including the coverage of an employee organisation in s.201(2).
[31] In the circumstances of the agreement approval decision by Commissioner Blair, the inclusion of the s.201 note appears to have reflected a presumption of regularity by the Commissioner as to the meeting of the Service Requirements in Form F22. Where, as in this case, the factual circumstances, as agreed between the parties to the appeal, were that the written notice was not served on the employer before approval of the Agreement, the inclusion of the s.201 note was in error and the decision of Commissioner Blair would not have included the s.201 note if he had been aware of the failure of the AMWU to provide a copy of the Form F22 to RotoMetrics prior to the approval of the Agreement. In our view, that error might have been capable of correction under s.602 of the Act. In this regard, we note that s.602 has been utilised to correct errors in relation to the failure to include a s.201 note in an agreement approval decision when, as has occasionally occurred, a Form F22 has been received within Fair Work Australia shortly before approval but has not made its way to the relevant Member before approval occurs, leading the Member to approve an agreement without including a s.201 note on the basis of the information available to them at the time of publishing a decision approving an agreement.
[32] We would note, however, that given the need to exercise caution in utilising s.602 of the Act to correct an obvious error, it would be necessary for a Member to afford affected persons with an opportunity to be heard in relation to correcting an error via s.602 and, in particular, to address the appropriateness of the use of the “slip rule” in the circumstances of the particular matter, having regard to relevant authority.
SENIOR DEPUTY PRESIDENT
Appearances:
T Donaghey with G Katz on behalf of RotoMetrics Australia Pty Ltd.
B Terzic on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Hearing details:
2011.
Melbourne:
October 19.
2 For example, s.593 gives standing to an employee organisation to which an enterprise agreement applies to institute proceedings in relation to a contravention of the agreement (s.50). Section 52 requires that an agreement cover the organisation in order for it to apply to the organisation.
3 For example, s.417 prohibits an officer of an employee organisation covered by an agreement from organising of industrial action from the day of approval of the agreement until its nominal expiry date has passed.
4 Re John Holland Rail Pty. Ltd, The Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union, Hunter 8 Alliance, New South Wales Agreement 2009 [2009] FWA 1774.
6 Explanatory Memorandum, House of Representatives, Fair Work Bill 2008, at paragraph 2316.
7 Gould v Vaggelas (1985) 157 CLR 271, at 275; Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1830 at 17 and Re Timber and Allied Industries Award 1999, PR937647, at para 35.
8 See Re Timber and Allied Industries Award 1999, PR937647, at para 29-35.
9 Re Timber and Allied Industries Award 1999, PR937647, at para 34 [Footnotes omitted from quotation].
10 Section 603(3)(b).
Printed by authority of the Commonwealth Government Printer
<Price code C, AE888093 PR515919>