Application by DP World Melbourne Limited [2016] FWC 386 (19 January 2016) [2016] FWC 386 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement DP World Melbourne Limited (AG2015/7485) COMMISSIONER CAMBRIDGE SYDNEY, 19 JANUARY 2016 Application for approval of the DP World Melbourne Enterprise Agreement 2015. [1] This Decision is made in respect to an application 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 Sydney on 30 November 2015. The application included a Statutory Declaration of Aimee Quintal made on behalf of the Employer and dated 30 November 2015 (the Declaration). The Declaration stated that the Agreement was made on 4 November 2015. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where an explanation for the late lodgement has been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly. [3] The application is substantially a repeat of an earlier application made in matter AG2015/6659 which was concluded by way of a Decision [2015] FWC 8235 (the earlier Decision) issued on 27 November 2015. In the earlier Decision, the Fair Work Commission (the Commission) dismissed the application on the basis that the information provided in a Statutory Declaration in support of that application, indicated that the Agreement was not made in accordance with s. 182(1) of the Act as there was not a majority of relevant employees who had cast a valid vote to approve the Agreement. [4] The application in this matter has indicated that the information contained in the Statutory Declaration made in respect of the earlier application (AG2015/6659), erroneously misstated the number of relevant employees who had voted to approve the Agreement. Consequently, once corrected, the Agreement has been made as a majority of relevant employees had voted to approve it in accordance with s. 182(1) of the Act. [5] In the course of the examination of the application made in the earlier matter, the Commission also noted that there were some deficiencies with the Notice of Employee Representational Rights (NERR) that was provided with the application. These deficiencies were noted in paragraphs [6], [7] and [8] of the earlier Decision. [6] The deficiencies with the NERR, as earlier identified, have become the subject of contention in respect of this application for approval of the Agreement. The applicant requested to be heard in respect to the application and a Hearing was accordingly conducted today, 19 January 2016. The Hearing has involved the Commission receiving submissions in support of the application. Further submissions in the form of a supplementary note were also provided shortly after the Hearing had formally concluded. These submissions included identification of the approval of similar enterprise agreements which involved NERRs that contained almost identical deficiencies to those identified in this instance. [7] It is regrettable that NERRs which are similar in form and content might be treated differently by the Commission on different occasions. However, particularly given the number of agreement approval applications which are processed in the context of the timeliness benchmarks which the Commission aims to achieve, some variation to the degree of scrutiny provided to each individual application might naturally be anticipated. In this instance, the errors that were made in the earlier application stimulated a more detailed examination of other aspects of the application and thus the deficiencies with the NERR were identified. The fact that similar form and content which had been included with a NERR in another matter or matters, appeared to have escaped attention cannot avoid the reality that, once identified, the Commission cannot disregard the apparent deficiencies of the NERR. [8] The NERR in this instance contained other content in the form of a company logo and letterhead information and it also incorrectly referred to the DP World Melbourne Enterprise Agreement 2014 . I have formed the view that the incorrect date of the title of the agreement referred to in the NERR is not a matter which represents a material change to the form and content prescribed for a NERR. Therefore, the incorrect date in the title of the agreement as referred to in the NERR does not invalidate the NERR. [9] However, the additional content that was included as part of the NERR is a matter of more serious concern. Although the inclusion of company logo and letterhead information may be considered to be insignificant, a Full Bench of the Commission issued a Decision on 2 April 2014 1 (Peabody), which dealt with inter alia, the operation of the provisions of s. 174 of the Act which prescribes the requirements for the form and content of a NERR. Importantly, the Full Bench Decision in Peabody 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.” [10] A more recent Full Bench Decision of the Commission 2 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 that did not strictly comply with the Regulations. In this instance the alterations to the NERR may be considered to be minor but they are not capable of being accommodated via the operation of the Acts Interpretation Act 1901 . [11] In particular, in this instance the NERR was constructed on what may be described as the Employer’s letterhead. Although in some respects the inclusion of this content may appear to be of little significance, it has the effect of altering the character of the document whereby what is a regulatory form takes on the character of an Employer’s document. In certain circumstances, this type of alteration to a NERR could conceivably have significant consequences. [12] In any event, the requirement for strict compliance of the NERR is unquestionable as the following further extracts from the Full Bench Decision in Peabody confirms: “[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.” [emphasis added] [13] Unfortunately, the NERR has departed from the form and content of the notice template provided in the Regulations. The Commission does not have discretion to consider any rectification of the minor departure from the form and content as prescribed for a NERR. Therefore, regrettably, the Commission cannot approve the Agreement. Accordingly the application is dismissed. COMMISSIONER Appearances : Ms J Blomfield appeared for DP World Brisbane Pty Ltd and DP World Melbourne Limited. Mr A Jacka appeared for The Maritime Union of Australia. Hearing details: 2016. Sydney: January 19. 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 . Printed by authority of the Commonwealth Government Printer <Price code A, PR576261>