[2014] FWCFB 2042

The attached document replaces the document previously issued with the above code on 2 April 2014.

To insert an additional appearance and correct a typographical error.

Annastasia Kyriakidis

Associate to Justice Ross, President

Dated 2 February 2015

[2014] FWCFB 2042
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Peabody Moorvale Pty Ltd
v
Construction, Forestry, Mining and Energy Union (CFMEU)
(AG2013/12223)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER SIMPSON

MELBOURNE, 2 APRIL 2014

Notice of employee representational rights - s.174(1A) of the Fair Work Act 2009 - Regulation 2.05 and Schedule 2.1 of the Fair Work Regulations 2009 - no capacity to depart from the form and content of the notice template provided in the Regulations - failure to comply goes to invalidity - Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 applied - employers not precluded from providing additional material to employees at the same time as the Notice is given to them - Regulation 2.06A(b)(i) - application for approval of an agreement to be accompanied by a signed copy - meaning of ‘address’ of each person who signs the agreement.

Background

[1] Peabody Moorvale Pty Ltd (‘Peabody’) has filed an application (AG2013/12223, the ‘application’) for the approval of an enterprise agreement titled (the Peabody Energy Australia Moorvale Enterprise Agreement 2013 (the ‘Agreement’) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). In proceedings before Deputy President Asbury on 24 January 2014, Peabody indicated that it intended to challenge a number of first instance decisions applying s.174(1A) of the Act and on that basis the application was referred to a Full Bench.

[2] Two issues are before us for determination. The first is whether the notice of employee representational rights (the ‘Notice’), provided by Peabody to each employee who will be covered by the Agreement, complied with s.174(1A) of the Act and, if the Notice did not comply, was it necessarily invalid and of no effect (the ‘Notice’ point). The second issue is whether Regulation 2.06A(b)(i) of the Fair Work Regulations (the Regulations) requires that an application for the approval of an enterprise agreement be accompanied by a signed copy of the agreement which includes the ‘residential address’ of each person who signs the agreement (the ‘Regulation 2.06A point’).

The Notice Point

[3] Three documents were given to the relevant Peabody employees. They are set out as Annexures JP1, JP2 and JP3 to Mr Paterson’s statutory declaration of 23 January 2014. Mr Paterson is the HR Manager Operations for Peabody. These documents were stapled together. JP1 is intended to reflect the form and content of the prescribed Notice in Schedule 2.1 of the Regulations. JP2 is a ‘Nominee Form’ and JP3 is the ‘Employer Form’. A copy of JPI, JP2 and JP3 are attached to this decision.

[4] The CFMEU contends that the Notice consists of documents JP1, JP2 and JP3. At the Notice contains ‘other content’, it does not comply with s.174(1A)(b) and is invalid. As a consequence, it is submitted, the application to approve the Agreement must be dismissed.

[5] The following issues arise for determination:

[6] The content and form of the Notice is dealt with in s.174 of the Act:

[7] As we have mentioned, one of the issues before us is whether the Notice, provided by Peabody to each employee who will be covered by the Agreement, complied with s.174(1A) of the Act.

[8] Section 174(1A) provides that a Notice must contain the content, and be in the form, prescribed in the regulations. Regulation 2.05 of the Fair Work Regulations 2009 (the ‘Regulations’) says: “For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[9] We deal with the terms of Schedule 2.1 later. We note now, that Regulation 2.05 and Schedule 2.1 refer to s.174(6) of the Act. Subsection 174(6) was repealed by the 2012 Amendment Act, effective 1 January 2013 (see Schedule 4, item 9 of the 2012 Amendment Act). However, item 8(2) of Schedule 3 to the Act provides as follows:

[10] We propose to deal first with the proper construction of s.174(1A) and the consequences of non-compliance with that provision, before turning to the question of whether the Notice in this case conformed to the requirements of s.174(1A).

[11] The starting point is to construe the words of s.174(1A) according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law and the mischief it was intended to remedy. 1

[12] Subsection 174(1A) provides:

[13] The conditions set out in paragraphs 174(1A)(a), (b) and (c) are cumulative, so much is clear from the use of the conjunctive ‘and’. A Notice must contain the prescribed content; must not contain any other content and must be in the form prescribed. Section 174 goes on to specify the content that must be included in the Notice, which is set out in Schedule 2.1 of the Regulations.

[14] What then are the consequences of providing a Notice which is different, either in content or form, from the Notice prescribed in the Regulations? As the High Court said in Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky), 2 an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect:

[15] While there is no decisive rule that can be applied to determine legislative purpose the decided cases provide some guidance in analogous circumstances. A textual indicator which is always of significance is the mode of expression in the provision in question. As Spigelman CJ observed in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd 3: ‘Substantial indeed often, but not always, determinative, weight must be given to language which is in mandatory form’.

[16] The word ‘must’ in s.174(1A) is language in mandatory form. A similar conclusion, albeit in a different context, was reached by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs 4. In that case the court was construing s.424A of the Migration act 1958 (Cth) which provides:

[17] The use of the words ‘must give’ was described by various members of the Court as ‘imperative’. 5 As McHugh J put it:

[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.

[21] Bargaining representatives perform an important role in the negotiation of an enterprise agreement. Section 228 sets out the ‘good faith bargaining requirements’ that must be met during the bargaining process. Importantly, the employer must ‘recognise and bargain’ with other bargaining representatives (s.228(1)(f)); ‘give consideration’ to the proposals of other bargaining representatives and respond to those proposals in a timely manner (s.228(1)(c)), giving reasons for their responses (s.228(1)(d)). A bargaining representative may apply to the Commission for a bargaining order under s.230 in relation to the agreement (s.229(1)). An employee organisation that was a bargaining representative for the proposed enterprise agreement has an entitlement to be covered by the agreement (see s.183(1) and 201(2)).

[22] Sections 173 and 174 are integral to the scheme of Part 2-4 of the Act. Section 173 provides that the employer must give the Notice to the relevant employees as soon as practicable, and not later than 14 days after the ‘notification time’ for the agreement. In the context of this case the ‘notification time’ is the time when the employer ‘agrees to bargain, or initiates bargaining, for the ‘agreement’ (s.173(2)(a)). Section 174 deals with the form and content of the Notice. Importantly, the employer cannot request employees to approve the agreement until 21 days after the last Notice is given (see s.181(2)).

[23] Section 578(a) of the Act is also relevant. It provides that in performing functions or exercising powers in relation to a matter under a part of the Act, the Commission must take into account the objects of the Act and any objects of the part of the Act. Section 174 is in Part 2-4 of Chapter 2 of the Act. The objects of Part 2-4 are set out in s.171:

[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.

[25] The general objects of the Act are also an important contextual consideration. One of the objects of the Act is ‘enabling fairness and representation at work ... by recognising ... the right to be represented’ (s.3(e)). The adoption of the clear meaning of s.174(1A) is consistent with this statutory objective.

[26] The evident legislative purpose is confirmed by the legislative history and the relevant extrinsic materials.

[27] Subsections 174(1A) and (1B) were enacted by the Fair Work Amendment Act 2012 (the 2012 Amendment Act) (see Schedule 4, item 8). The relevant extract from the Explanatory Memorandum to what became ss.174(1A) and (1B) states:

[28] The emphasised text is entirely consistent with the clear and unambiguous terms of s.174(1A). The recommendation referred to in the Explanatory Memorandum is contained in report of the Panel set up to review the Act and the Workplace Relations Amendment (Transition to Forward with Fairness Act) 2008. The Panel’s report is titled ‘Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation’ (the Review Report) Recommendation 19 of the Review Report is in the following terms:

[29] The commentary in the Review Report which prefaces this recommendation is as follows 7:

[30] The Panel’s recommendation was in response to submissions that modifications and additions to the Notice contained in Schedule 2.1 of the Regulations should not be permitted. It is apparent that the Panel were concerned that there had been several instances of employers modifying the content or form of the Notice and the recommendation was made ‘[t]o eliminate confusion and any opportunities for malpractice’. The Review Report made specific reference to Galintel Rolling Mills Pty Ltd t/as The Graham Group (Galintel) 12 as the ‘most significant decision’ concerning the content of a s.173 notice and in footnote 532 referred to several decisions by Fair Work Australia (as the Commission was then known) dealing with employers modifying the content or form of the Notice provided to employees.

[31] In Galintel the Notice was in identical terms to the prescribed form in Schedule 2.1 of the Regulations save that at the bottom of the Notice was what was described as a ‘slip’ enabling employees to nominate a bargaining representative. The ‘slip’ was in the following terms:

[32] At first instance a Commissioner had held that the Notice did not comply with s.173 of the Act. In upholding the appeal and quashing the Commissioner’s decision the Full Bench said:

While it is generally unwise for an employer to alter or add to the terms of a Notice of Representational Rights because an alteration may alter its nature, we are unable to agree with the Commissioner or the AMWU that the slip added at the base of the notice given by Galintel had any such effect. It may have been preferable to reiterate the optional nature of any appointment of a bargaining representative, perhaps by including the words “If you wish to appoint a bargaining representative” before the words on the slip “Please complete...”. Importantly however there was no evidence that any of the six employees to be covered by the Agreement were mislead into a belief that appointment was mandatory. As a valid notice was provided to employees and as the requisite 21 days expired before the request was made to approve the agreement, s181(2) was satisfied in the circumstances of this case.” 15

[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.

[34] We note here that the CFMEU submitted that the Review Panel’s recommendation travelled beyond a repudiation of Galintel and the notion that substantial compliance with the content and form of the prescribed Notice was sufficient, and embraced each of the decisions in footnote 532 to the Review Report. In each of the decisions referred to in footnote s.532 the Commission decided, for various reasons, that the Notice did not comply with s.174 of the Act.

[35] The CFMEU submits that by the enactment of s.174(1A) to implement Review Report recommendation 19 the legislature intended to make it clear that the conduct involved in the footnote 532 decisions was prohibited conduct and the enactment was intended to extend to:

[36] In our view this submission draws too long a bow. To make good its submission the CFMEU must establish two things - first the Review Panel should be taken to endorsing the outcome of the decisions referred to in footnote 532 and, secondly, that in enacting s.174(1A) the legislature was giving effect to not just recommendation 19 but also to the Review Panel’s endorsement of the footnote 532 decisions. We are not persuaded that there is a sound basis for the adoption of either proposition.

[37] It is tolerably clear from the Review Report extract set out at paragraph [29] above that the footnote 532 decisions were referred to merely for the purpose of supporting the observation that there was evidence of employers modifying the content and form of Notices. Unlike the Review Report’s express reference to Galintel there was no discussion of the footnote 532 decisions.

[38] The second of the propositions the CFMEU has to establish also fails, for two reasons. First, it is based on an erroneous assumption that the Review Panel should be taken to be endorsing the footnote 532 decisions. And, second, the extrinsic material relating to the enactment of s.174(1A) makes no reference to any intention to endorse the footnote s.532 decisions.

[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. We now turn to the consequences of such a construction.

[40] The Commission must approve an enterprise agreement if, relevantly, the requirements set out in ss.186 and 187 of the Act are met. Subsection 186(2) provides:

[41] Section 188 deals with when employees have ‘genuinely agreed’ to an enterprise agreement, it provides:

[42] Section 181 provides:

[43] Section 173 provides:

[44] The 21 day requirement in s.181(2) is met if there was a period of at least 21 days after the last Notice was given before employees were asked to approve the proposed agreement. This requirement is not met unless the Notice is validly issued under s.173 and a Notice will be valid provided that it complies with the content and form requirements of s.174(1A).

[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:

[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. We now turn to the facts of this case to determine whether the Notice given by Peabody complies with Schedule 2.1.

[48] There is no dispute that Peabody gave the Notice to the relevant employees within 14 days after the notification time for the Agreement (as required by s.173) and that it was given in a manner consistent with Regulation 2.04. The issue in dispute is whether the Notice complied with s.174(1A) of the Act. Two particular questions arise in this case - whether the Notice contained ‘any other content’ within the meaning of s.174(1A)(b) and whether it contained the content prescribed by the Regulations (s.174(1A)(a)).

[49] The CFMEU submits that the content and form of the Notice included all three pages and not just the first page, that is the Notice consisted of JP1, JP2 and JP3. It is submitted that the second and third pages, namely, (JP2) and (JP3), both fall within the prohibition that the notice must not contain any other content. In support of this submission, it points to Mr Paterson’s response to one of the questions in the Form 17 at 2.3, “Did the employer take all reasonable steps to give notice of their right to be represented by a bargaining representative to each employee who will be covered by the agreement?” In response to this question, Mr Paterson declared, “Yes, please attach a copy of the notice given to employees.” (emphasis added). This response to this Form 17 question was to attach all three pages of the material provided to the employees (JP1, JP2 and JP3). Mr Paterson is the HR Manager Operations for Peabody.

[50] The context of this declaration included the instructions in the FWC publication “About the F17 Statutory Declaration” contained on the first page:

[51] In the Form 17 statutory declaration at 2.3, Mr Paterson further declared:

[52] The reference in the Form 17 to “the attached notice” was to all three pages provided to the employees. The reference to “lodge this” meant the Notice and in particular the “Nominee Form” that was part of the material provided to the employees.

[53] The CFMEU also relies on an email of 20 December 2013, which represented to be “… an originating application for the approval, by the Brisbane Fair Work Commission, for a new enterprise agreement”, included as one of the PDF attachments a three-page file named and saved as the “Moorvale Notice of Employee Representational Rights”. This document is the three-page document and not just the first page that the applicant now wants to solely rely upon. The 20 December 2013 email also represented that there was contained in the correspondence the “Notice or (sic) Employee Representational Rights”. Again, this notice is the three-page document.

[54] Mr Paterson’s evidence is that Peabody decided to formally commence bargaining for the Agreement on 26 or 27 November 2013 and the Notice was given to the relevant employees on 28 November 2013. At paragraphs [27] to [35] of his 23 January 2014 statutory declaration Mr Paterson states:

[55] The CFMEU submits the Commission should not accept either what it characterises as ‘the recent inventions by Mr Paterson’ in his 23 January 2014 statutory declaration at [33] (see paragraph above).

[56] The CFMEU submits that the Notice was not valid as it did not comply with s.174(1A) in that it contained ‘other content’ (namely documents ‘JP2’ and ‘JP3’) and hence was not in the form prescribed by Regulation 2.05.

[57] The CFMEU relied on the decision of Deputy President Gooley in Shape Shopfitters Pty Ltd 17 (Shape Shopfitters), and other first instance decisions applying Shape Shopfitters, in support of its submissions. In Shape Shopfitters the issue was whether the Notice in that case complied with s.174(1A). The Notice contained the content prescribed in Schedule 2.1 and attached to that document was a form which provided for employees to advise the employer of one of three options:

[58] The Deputy President concluded that as no Notice of the prescribed kind was provided to employees, the employer did not comply with s.181(2) and therefore the agreement could not be approved. In the course of her reasons the Deputy President said:

[59] Peabody submits that the Notice complied with s.174(1A) of the Act:

[60] Peabody submits that the requirements of s.174(1A) apply to the Notice itself (ie ‘JP1’) and do not apply to any other form or information provided at the same time. Peabody characterises JP2 and JP3 as additional material which did not form part of the Notice. It submits that the Notice provided (‘JP1’) did not contain any other ‘content’ than that prescribed by the Act. Peabody’s submissions in this regard are encapsulated in paragraphs 22-24 and 32-36 of its written submission:

[61] Peabody submits that the decisions relied on by the CFMEU (ie Shape Shopfitters and the decisions which apply it) were decided contrary to principle and should not be followed.

[62] Ai Group submits that the question for determination is whether the distribution of ‘JP2’ and ‘JP3’ resulted in a failure by Peabody to comply with s.174 of the Act. It submits that the Notice issued by Peabody (ie JP1) is a valid notice and complies with the requirements of ss.173 and 174 of the Act; Ai Group also submitted that Shape Shopfitters should not be followed. At paragraph 3.27 of its written submission Ai Group says:

[63] Ai Group submitted that adoption of Shape Shopfitters would lead to ‘arbitrary, confusing and uncertain requirements’ about the process for issuing a Notice to employees.

[64] The Minister submits that a Notice that otherwise complies with s.174(1A) in both content and form is not rendered invalid simply because other material is provided to the relevant employees at the same time. The Minister submits that the ‘mischief’ which s.174(1A) seeks to address is directed at alterations to the Notice itself and the provision of additional material with a Notice should not invalidate a Notice that otherwise complies with s.174(1A) in both content and form. In circumstances where additional material is provided with the Notice and that material has the character of being, for example, misleading or intimidatory, then this will be relevant to the Commission’s assessment of whether the enterprise agreement had been ‘genuinely agreed’ by the employees. However, it is not a basis for finding that a Notice has not been given in accordance with the Act.

[65] In circumstances where additional material accompanies a document that complies with the form and content of Schedule 2.1 a question arises as to how to distinguish between material accompanying a Notice and material which alters the content of the Notice. In the course of oral argument counsel for the Minister addressed this question and submitted:

[66] We agree with the submissions advanced on behalf of the Minister, in three respects.

[67] First, s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Subsection 174(1A) is directed at the form and content of the Notice. It does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employer from providing employees with a simple covering letter or an offer of interpreter services. Such a construction would also give rise to considerable uncertainty, for example, about whether an employer could merely provide the additional information in a separate envelope to the envelope containing the Notice, or whether the additional information could be provided at the same time or whether the employer would need to wait until a later time, and if so how long should the employer wait.

[68] These problems are avoided if s.174(1A) is interpreted as a means of curing the mischief to which it was directed, namely, ensuring that the actual Notice is not amended in content or form from the template provided in Schedule 2.1 of the Regulations. To the extent that Shape Shopfitters may be said to be inconsistent with our conclusion it is wrong and should not be followed.

[69] Secondly, where additional material accompanies a document which contains the content, and is in the form, prescribed in the Regulations, the issue to be determined is what purports to be the Notice. This is a question of fact.

[70] Thirdly, where additional material is provided with the Notice and that material has the character of being, for example, misleading or intimidatory, then this will be relevant to the Commission’s assessment of whether the enterprise agreement had been ‘genuinely agreed’ by the employees. However, it is not a basis for finding that a Notice has not been given in accordance with the Act. Section 188 deals with when employees have ‘genuinely agreed’ to an enterprise agreement. It is set out at paragraph [41] above. To rely on additional material which is misleading or intimidatory as a basis for finding that the Notice has not been given in accordance with the Act would be to conflate the issues that arise for consideration in paragraphs 188(a) and (c). These are two separate requirements and need to be considered as such. Paragraph 188(a) deals with whether a Notice was given in accordance with the Act (ie whether the timing, content and form requirements were met). Any concerns as to whether the employees may have misunderstood their right to be represented, despite being provided with a valid Notice, fall to be considered under paragraph 188(c). In Ostwald Bros Pty Ltd v CFMEU23 the majority of the Full Bench made the following observation of section 188 :

[71] We now turn to consider what purports to be the Notice in this case.

[72] It is common ground that the three documents (JP1, JP2 and JP3) were stapled together and given to each of the employees. The issue is whether these three documents stapled together constituted the purported Notice or whether only JP1 was the purported Notice. The evidence relevant to this issue is Mr Paterson’s Form 17 statutory declaration of 20 December 2013 and the covering email of the same date; Mr Paterson’s statutory declaration of 23 January 2014 and Mr Paterson’s oral evidence in the proceedings. The documentary evidence is referred to earlier in our decision (see paragraphs [49]-[54]).

[73] The Form 17 statutory declaration and covering email support an inference that the purported Notice consisted of documents JP1, JP2 and JP3.

[74] In his Form 17 declaration Mr Paterson’s response to question 2.3 states that a Notice was given to each employee and that a ‘copy of the notice given to employees’ was attached to the declaration. The document attached to the Form 17 declaration consisted of all three pages of the material provided to the employees (ie JP1, JP2 and JP3). The covering email to the Form 17 declaration also referred to the attached Notice of Employee Representational Rights. The only document attached was the three pages provided to the employees.

[75] In his subsequent declaration of 20 January 2014 Mr Paterson seeks to distinguish between the documents provided to the employees by characterising JP1 as the Notice; JP2 as an employer’s copy of a bargaining representative nomination form; and JP3 as an employee’s copy of a bargaining representative nomination form. He describes JP1, JP2 and JP3 as ‘three separate documents’.

[76] Mr Paterson was cross-examined as to the characterisation of his Form 17 declaration:

[77] We reject Mr Paterson’s evidence about what constituted the purported Notice at the time he completed the 20 December 2013 Form 17 declaration. Mr Paterson gave inconsistent evidence and aspects of his evidence gave the impression that he was advocating Peabody’s case.

[78] As to the inconsistencies in his evidence, during examination in chief he referred to JP1, JP2 and JP3 as ‘three documents ... stapled together as a pack’ 25. He made a number of other references to the three documents constituting a ‘pack’26 and later in cross-examination Mr Paterson sought to reject the characterisation of the three documents as a ‘pack’:

[79] Later when asked why the bargaining representative nomination forms (JP2 and JP3) had been attached to the form F17 declaration, he gave the following evidence:

[80] As to Mr Paterson advocating Peabody’s case, this is evidence from two passages in his evidence:

[81] Later in his cross-examination Mr Paterson was asked about the three page PDF attachment to his Form 17 declaration (ie JP1, JP2 and JP3) he replied:

[82] Mr Paterson’s evidence gave the impression of being crafted to support Peabody’s case. The same observation may be made of his statutory declaration of 23 January 2014.

[83] In our view the proper inference to be drawn is that the purported Notice in this case consisted of the three pages given to the employees (ie JP1, JP2 and JP3).

[84] We wish to make it clear that the finding we have made in this case as to what constitutes the notice turns on the particular facts in this matter. We repeat our earlier observation (at paragraphs [68] to [70] that s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Where additional material accompanies a document which complies with the form and content of the prescribed Notice the issue to be determined is what purports to be the Notice. This issue will turn on the evidence and particular circumstances of each case.

[85] As the Notice includes ‘other content’ it does not comply with s.174(1A) and hence is invalid. The Notice did not appear to comply with the prescribed Notice in a number of other respects, however given our conclusion above it is unnecessary for us to deal with those matters.

[86] We now turn to consider whether Regulation 2.06A(b)(i) requires that an application for the approval of an enterprise agreement be accompanied by a signed copy of the agreement including the ‘residential address’ of each person who signs the agreement.

The Regulation 2.06A point

[87] Subsection 185(2)(a) provides that an application for the approval for an enterprise agreement must be accompanied by ‘a signed copy of the agreement’ and s.185(5) provides that the Regulations may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A is made pursuant to s.185(5) and relevantly provides:

[88] The issue in contention is the meaning of ‘the.. address of each person who signs the agreement’, in Regulation 2.06A(2)(b)(i). The particular issue is whether ‘address’ means the persons’ residential address or whether it is sufficient if the persons’ work address is supplied.

[89] The CFMEU submits that giving meaning to every word in Regulation 2.06A(2)(b)(i), and having regard to the context, the word ‘address’ must mean residential address. It is submitted that the word ‘each’, in the expression ‘the full name and address of each person who signs the agreement’, must be given some work to do and if each person who signed the agreement was simply able to provide the same work address then the word ‘each’ would be otiose. In support of its contextual argument the CFMEU referred to ss.117 and 711 of the Act. The CFMEU also contends that non-compliance with Regulation 2.06A(2)(b)(i) goes to invalidity. In other words if the persons who sign the agreement do not set out their residential address the application to approve the agreement is invalid.

[90] For the reasons which follow we reject the CFMEU’s contention that the word ‘address’ in Regulation 2.l06A(2)(b)(i) means ‘residential address’.

[91] Peabody, the Ai Group and the Minister reject the CFMEU’s characterisation of the word ‘address’ in Regulation 2.06A(2)(b)(i) and submit that it is sufficient if the persons signing the agreement provide their work addresses.

[92] It is not in dispute that when one looks at the Agreement itself every address provided for an employee is the same, that is, their work address.

[93] ‘Address’ is not defined in the Regulations, the Act or the Acts Interpretation Act 1901 (Cth). Nor does the Explanatory Statement to the Fair Work Amendment Regulations 2009 (No. 3) specifically explain why a bargaining representative’s address is necessary when signing the enterprise agreement. However, the inclusion of a person’s address would assist the Commission in the event that it decided to inform itself, in connection with the application for approval of the agreement, by contacting an employee (or other bargaining representative). Paragraph 763 of the Explanatory Memorandum to the Fair Work Bill 2008 states in relation to section 185:

[94] The Macquarie Dictionary Online defines “address” as “a place where a person lives or may be reached” (emphasis added). It is likely that a business address would be sufficient for identification purposes, should the Commission need to contact the person who signed the agreement on behalf of the employees covered by the agreement.

[95] The context tells against the construction advanced by the CFMEU. In this regard we note that the Regulations make reference elsewhere to an individual’s ‘residential address’ 31; ‘postal address’32; and ‘email address’33. The only other provision in the Regulations that require an individual to provide their address is subregulation 2.09(A)(2)(b)(i) (which deals with requirements for signing variation of enterprise agreement). The use of these different expressions in the same legislative context suggests that a different meaning was intended. As Irvine CJ observed in Scott v Commercial Hotel Merbein Pty Ltd 34,:

[96] It is particularly relevant to note that in the regulations relating to Part 2-4 of the Act the legislature has chosen to use different expressions. In Regulation 2.04, dealing with how a notice of employee representational rights is given, subregulation 2.04(3) provides:

[97] The legislature could have specified in Regulation 2.06A that bargaining representatives provide their residential address, given that this phrase is used elsewhere in regulations pertaining to Part 2-4 of the Act. However, the legislature has only required a bargaining representative to provide their address. In our view this indicates that the legislative intention was that a bargaining representative would not be required to provide their residential addresses.

[98] We are not persuaded by the CFMEU’s submissions in support of the contention that ‘address’ in Regulation 2.06A(2)(b)(i) means residential address. The context does not support such a proposition. The likely purpose of the provision is that it would assist the Commission in contacting the signatories to the agreement in the event that it decided to inform itself in relation to a matter pertaining to the application to approve the agreement. This purpose would be met by the provision of a work or residential address - either would provide the Commission with a means of contacting the person.

[99] The CFMEU’s reliance on ss. 117 and 711 does not advance its argument. The use of the word ‘address’ in those contexts may well mean ‘residential address’, but the context and legislative purpose of Regulation 2.06A(2)(b)(i) is quite different. The presumption that words used in legislation should be given a consistent meaning 35 is readily rebutted by reference to changes in context.36

[100] Nor are we persuaded by the submission that unless ‘address’ means ‘residential address’ the word ‘each’ would be otiose. The word ‘each’ would still have some work to do - it requires each person who signs the agreement to provide their full name.

[101] It should also be borne in mind that the effect of the CFMEU’s submission is that we would be implying the word ‘residential’ into Regulation 2.06A. As observed by Northrop and Pincus JJ in Dallikavak v Minister for Immigration and Ethnic Affairs  37

[102] In the context of this matter we are not persuaded that it is necessary to read ‘address’ to mean ‘residential address’.

[103] Peabody has failed to give a Notice which complies with the content and form requirements of s.174(1A) and for that reason the application to approve the Agreement must be dismissed.

PRESIDENT

Appearances:

H.J. Dixon SC and Mr Gotting for the Applicant

B. Docking of Counsel with Mr Anderson and Mr Bukarica for the Construction, Forestry, Mining and Energy Union

J. E. Murdoch QC for the Minister for Employment on behalf of the Commonwealth

Hearing details:

2014.

Brisbane:

February 27.

Final written submissions:

12 March 2014

 1   See Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

 2   (1998) 194 CLR 355 at [91] per McHugh, Gummow, Kirby and Hayne JJ

 3   (2010) 272 ALR 750 at [40]

 4   (2005) 228 CLR 294

 5   Ibid at [68] per McHugh J; [136] per Gummow J; [173] per Kirby J and [206] per Hayne J

 6   Ibid at [68]-[71], also [136] per Gummow J, [173] per Kirby J and [204] per Hayne J. Also see: Corporation of the City of Enfield v Development Assessment Corporation (2000) 199 CLR 135 at [6], [28] and [32]-[33] per Gleeson CJ, Gummow, Kirby and Hayne JJ

 7   Review Report at p 144

 8   AWU, p. 4; SDA p. 50; TCFUA, p. 16.

 9   SDA, pp. 51–52; see also TCFUA, p. 15.

 10   TCFUA, p. 15.

 11   Ai Group, p. 24.

 12   [2011] FWAFB 6772

 13   [2010] FWA 1605.

 14   [2011] FWAFB 6106.

 15   [2011] FWAFB 6772 at [41]-[46]

 16   Written submissions on behalf of the Minister 18 February 2014 at [10].

 17   [2013] FWC 3161

 18   [2013] FWC 3161 at [10]-[13]

 19   Peabody’s written submission at [3]

 20   Fair Work Act 2009 (Cth), s 178.

 21   Melian Transport Pty Ltd re Melian Transport Ply Ltd Ente1prise Agreement 2012 [2012] FWA 8975

referring to McDonald's Australia Pty Ltd & Anor [2010] FWAFB 4602.

 22   Transcript at [398]

23 [2012] FWAFB 9512 at [80]

 24   Transcript at [189]-[190] and [193]. Also see [194]-[201]

 25   Transcript at [107]

 26   Transcript at [109], [174] and [1843]

 27   Transcript at [199]

 28   Transcript at [220]-[221]

 29   Transcript at [184]

 30   Transcript at [199]

 31   See subregulations 2.02(3)(a), 2.04(3)(a), 3.13(5)(b)(i), 3.24(3)(a)

 32   See subregulations 2.02(3)(b), 2.04(3)(b), 3.13(5)(b)(ii), 3.24(3)(b)

 33   See subregulations 2.02(4), 2.02(5), 2.04(4), 2.04(5), 3.13(5)(c)(d), 3.24(4)

 34   [1930] VLR 25 at 30; also see O’Sullivan v Barton [1947] SASR 4 and CFMEU v Hadgkiss (2007) 169 FCR 151

 35   (See Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J)

 36   (See McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643, and Mort v Bradley [1916] SALR 129)

 37   (1985) 61 ALR 471, also see Thompson v Goold & Co. [1910] AC 409 at 420 per Lord Mersey and Marshall v Watson (1972) 124 CLR 640 at 649 per Stephens J).

 38   Ibid at 475

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