Application by CSR Building Products Limited [2015] FWC 23 (7 January 2015) [2015] FWC 23 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.185 —Enterprise agreement CSR Building Products Limited T/A CSR Bricks & Roofing (AG2014/10457) Manufacturing and associated industries COMMISSIONER RYAN MELBOURNE, 5 JANUARY 2015 Application for approval of the CSR Bricks & Roofing - Vermont Operators Enterprise Agreement 2014. [1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the CSR Bricks & Roofing - Vermont Operators Enterprise Agreement 2014 (the agreement) was filed with the Fair Work Commission (the Commission) on 22 December 2014. [2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) sworn by Ms Deborah Evans, HR Officer. The Form F17 identifies that bargaining commenced with the Applicant issuing a Notice of Employee Representational Rights (a Notice) to employees 2 April 2014. [3] Amendments to the Act which commenced on 1 January 2013 clarified what must be in a Notice. Section 174(1A) of the Act states as follows: “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.” [4] Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations) sets out the terms of a Notice as follows: “ 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: 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] .” [5] The Notice issued to employees in relation to this agreement does not contain all of the content prescribed by the Regulations. The Notice is in the following form: " 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.” Consideration [6] The Full Bench in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 considered in detail what is required in giving a valid Notice to employees intended to be covered by a proposed enterprise agreement. In particular the Full Bench, after reviewing the terms of s.174 and subsection (1A), in particular, concluded: “[16] The word ‘must’ in s.174(1A) is language in mandatory form.” [7] It continued to indicate: “[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.” [8] It also concluded: “[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. [9] Non compliance with s.174(1A) of the Act by the employer means that there is no valid enterprise agreement before me. [10] The application in this matter is therefore dismissed. Observation [11] Apart from this deficiency in the agreement making process, the application is otherwise without problems and if not for the defective Notice would have been approved. COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code A, PR559659>