Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2015] FWC 4643 of Commissioner McKenna at Sydney on 10 July 2015 in matter number AG2015/3697.

[1] Serco Australia Pty Limited (Serco) has applied for permission to appeal and appealed a decision of Commissioner McKenna issued on 10 July 2015 1 (Decision) in which the Commissioner dismissed an application for approval of an enterprise agreement, the Serco Immigration Services Agreement 2015 (Agreement). The application was dismissed on the basis that the notice of representational rights (Notice) issued by Serco to its employees pursuant to s.173 of the Fair Work Act 2009 (FW Act) did not conform to the prescribed form of the notice, did not therefore comply with the requirements of s.174(1A), and was invalid as a result. Serco contends that the Commissioner erred in reaching that conclusion, and the error resulted in a failure to exercise her jurisdiction in respect of the application to approve the Agreement. The respondent unions support Serco’s appeal.

[2] Senior Counsel for Serco identified the only disconformity between the Notice and the prescribed form (which is set out in Schedule 2.1 of the Fair Work Regulations 2009) as being that where the prescribed form refers to the “Fair Work Commission”, the Notice referred to “Fair Work Australia”. By way of background, this Commission as established by the FW Act was originally named “Fair Work Australia”. The name of the Commission was changed to the “Fair Work Commission” as a result of the Fair Work Amendment Act 2012 (Amendment Act). This appears to be the only disconformity dealt with in the Decision. We will therefore proceed on the basis that this is the only disconformity.

[3] The reasoning in the Decision concerning the validity of the Notice was as follows:

“[8] While I accept the matters as to the particular notice considered in Peabody Moorvale 2 differed from those arising in relation to the notice in the application before me, the Full Bench nonetheless squarely concluded that failing to give a compliant notice means that the Commission “cannot” approve an enterprise agreement. Part of the decision read:

‘[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. …’

[9] I have considered the submissions concerning s.575(1) of the Act and s.25B(1)(b) of the Acts Interpretation Act. Although references to re-named bodies are to be construed in the usual way in matters involving interpretation, s.174(1A) of the Act refers specifically, and in mandatory language, to (actual) content and form. I have considered the submissions concerning Project Blue Sky and also the practical insignificance of the differences between the old and current versions of the notices.

[10] If the Act, as considered in Peabody Moorvale, allowed latitude such that there was scope for discretion in relation to the particular notice issued by Serco, I would exercise it. However, as the notice issued by Serco does not, for example, contain the content prescribed by the Regulations the Commission cannot approve the agreement.”

[4] Serco advanced a number of submissions in support of its appeal, but it is only necessary for us to consider its primary submission, namely that the Commissioner erred in not treating s.25B(1)(b) of the Acts Interpretation Act 1901 as being applicable to the Notice.

[5] The application of the Acts Interpretation Act to the FW Act is specifically dealt with in s.40A of the FW Act, which provides:

Application of the Acts Interpretation Act 1901

(1)  The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.

(2)  Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.

[6] As at 25 June 2009, s.25B(1)(b) of the Acts Interpretation Act provided (underlining added):

(1)  Where an Act alters the name of a body (whether or not the body is incorporated) or alters the name of an office, then, unless the contrary intention appears:
. . .

(b)  in any Act, in any instrument under an Act, in any award or other industrial determination or order or any industrial agreement, in any other order (whether executive, judicial or otherwise), in any contract, in any pleading in, or process issued in connection with, any legal or other proceedings or in any other instrument, a reference to the body or the office under the former name shall, except in relation to matters that occurred before the alteration took place, be construed as a reference to the body or the office under the new name.

[7] The underlined words above were deleted as a result of the Acts Interpretation Amendment Act 2011. However that amendment did not appear to have been intended to change the effect of the provision. Section 2(1) of the Acts Interpretation Act currently provides that the Act applies to all Acts, but s.2(2) provides that “the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention”. The amendment to s.25B(1) appears to have been merely tidying up in the drafting of the Acts Interpretation Act.

[8] There is no doubt that, in the absence of a contrary intention expressed in the FW Act, s.25B(1)(b) as it stood at 25 June 2009 would be applicable to a notice of employee representational rights issued pursuant to s.173 of the FW Act because it is stated to apply to “any other instrument”. The effect of s.25B(1)(b), if applicable, would be to require the Notice to be construed as if the references to “Fair Work Australia” were in fact references to the “Fair Work Commission”. The critical question therefore is whether anything in the FW Act expresses a contrary intention such as to make s.25B(1)(b) not applicable to the Notice.

[9] Although it is not expressly stated in the Decision, the Commissioner appears to have concluded that s.174(1A), which was added to the FW Act as a result of the Amendment Act, exhibited a contrary intention. Section 174(1A) provides:

(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.

[10] In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union 3 a Full Bench of this Commission analysed the meaning of s.174(1A) and the consequence of non-compliance with it. The Full Bench’s conclusions were as follows:

“[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.’

[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.”

[11] As the reasoning in the Decision quoted above demonstrates, the Commissioner relied upon the conclusions stated in Peabody Moorvale to conclude that s.25B(1)(b) of the Acts Interpretation Act did not operate with respect to a notice of representational rights. However, we do not consider that Peabody Moorvale is to be read as supporting that conclusion. The application of s.25B(1)(b) to a notice of employee representational rights was not considered in that decision. While Peabody Moorvale is certainly authority for the proposition that the effect of s.174(1A) of the FW Act is to require that such a notice strictly comply with prescribed form, it must be borne in mind that if s.25B(1)(b) of the Acts Interpretation Act does apply to the Notice here, then the consequence is that the Notice does comply with the prescribed form.

[12] It may be accepted that the requirement for strict compliance contained in s.174(1A), considered in isolation, is on one view an indicator that it was not intended that a defective notice of employee representational rights could be “saved” by the application of s.25B(1)(b) of the Acts Interpretation Act. However we consider that there are three stronger indicators elsewhere in the legislative scheme which indicate that the operation of s.25B(1)(b) was not intended to be excluded.

[13] The first is s.40A of the FW Act, which we have earlier set out. It constitutes an express statement that the Acts Interpretation Act as it stood at 25 June 2009 was to apply to the FW Act generally. It would be difficult to conclude therefore that s.25B(1)(b) did not apply to any particular provision in the FW Act absent an express statement to that effect.

[14] Second, s.575(1) of the FW Act provides:

(1)  The body known immediately before the commencement of this subsection as Fair Work Australia is continued in existence as the Fair Work Commission.

Note: See also subsection 25B(1) of the Acts Interpretation Act 1901.

[15] Section 575(1) in its current form is the result of amendments contained in Schedule 9 of the Amendment Act to effect the name change to this Commission. The note attached to s.575(1) was introduced at the same time, and indicates an intention that s.25B(1) apply generally in respect of the name change. While the note may not be part of the Act as such 4, it is material which under s.15AB of the Acts Interpretation Act may be taken into account in resolving any ambiguity with respect to s.174(1A).

[16] Third, in Schedule 11, “Application, transitional and saving provisions”, of the Amendment Act, Part 9 contains various transitional provisions associated with the change of the name of the Commission. Part 9 ends with item 30, which provides:

30   Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited

This Part and Schedule 9 to the amending Act do not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901.

[17] Item 30 again exhibits an intention that s.25B(1) apply generally to the FW Act in respect of the name change.

[18] As earlier stated, it was the Amendment Act which added s.174(1A) to the FW Act. The fact that the same Act expressed a general intention that s.25B(1)(b) of the Acts Interpretation Act apply in respect of the name change gives rise to a strong inference that s.174(1A) was not intended to exclude the application of s.25B(1)(b) to notices of employee representational rights.

[19] We therefore conclude that s.25B(1)(b) of the Acts Interpretation Act as it was at 25 June 2009 operated in respect of the Notice such as to render it compliant with s.174(1A). We note that the conclusion that s.25B(1)(b) may apply to a notice of employee representational rights in this way is not a novel one; a number of single member decisions in this Commission have stated the same conclusion. 5 The decision of the Commissioner was therefore, with respect, in error.

[20] We order as follows:

(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision is quashed.
(4) The application for approval of the Agreement is remitted to Commissioner McKenna for determination on the basis that the Notice complies with s.174(1A) and is valid.

VICE PRESIDENT

Appearances:

J. J. Fernon SC of counsel with P. Brown solicitor for Serco Australia Pty Limited

S. Bull for United Voice and the Union of Christmas Island Workers

Hearing details:

2015.

Sydney:

21 August.

 1   [2015] FWC 4643

 2   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042; (2014) 242 IR 210

 3   Ibid

 4   Section 13 of the Acts Interpretation Act, which provides that all material in an Act from and including the first section to the end of the last section or schedule is part of the Act, was not in effect as at 25 June 2009. Under s.40A of the FW Act it therefore does not apply to the FW Act.

 5   See Comselec Group Pty Ltd [2014] FWCA 3468; Preston Motors (Essendon) Pty Ltd [2014] FWCA 4891; Jemena Asset Management Pty Ltd [2014] FWCA 3892; Precept Services Business Trust ITF Precept Services Pty Ltd [2014] FWCA 3371; Bromar Electrical Services (Aust) Pty Ltd [2014] FWCA 3331; Ker-Dar Electrics Pty Ltd [2014] FWCA 3330; UBOS Australia Pty Ltd [2014] FWCA 3143; PROAB Electrical Pty Ltd [2014] FWCA 3137

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