[2017] FWC 1387
FAIR WORK COMMISSION

REASONS FOR DECISION


Fair Work Act 2009

s.185—Enterprise agreement

AusNet Transmission Group Pty Ltd and AusNet Electricity Services Pty Ltd T/A AusNet Services
(AG2017/614)

Electrical power industry

COMMISSIONER LEE

MELBOURNE, 15 MARCH 2017

Application for approval of the AusNet Services - ASU/APESMA Enterprise Agreement 2017 - not approved.

[1] An application has been made for approval of an enterprise agreement known as the AusNet Services – ASU/APESMA Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AusNet Transmission Group Pty Ltd and AusNet Electricity Services Pty Ltd T/A AusNet Services (the Applicant). The Agreement is a single enterprise agreement.

[2] On 1 March 2017 the Commission advised the Applicant that it appeared the notice of employee representational rights (the notice) that was provided to employees contained content that departed from the form prescribed by Schedule 2.1 of the Fair Work Regulations 2009. The content identified was the reference to the phone number of the Fair Work Ombudsman (13 13 94) rather than the phone number for the Fair Work Commission Infoline (1300 799 675).

[3] On 2 March 2017 the Applicant advised that it wished to be heard on the matter. The matter was listed for hearing, by telephone before me on 8 March 2017. Ms Butler appeared on behalf of the Applicant, Ms Jenner appeared on behalf of The Association of Professional Engineers, Scientists and Managers, Australia and Mr Smallbone appeared on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

[4] Having heard from the parties and considered the submissions made I determined that the Agreement was not capable of approval. These are the written reasons for my decision not to approve the Agreement.

The law to be applied

[5] Section 186(2)(a) requires, in order for the Commission to approve an agreement that:

[6] Section 188 sets out when employees have genuinely agreed and it makes clear that:

[7] Section 181 sets out when employers may request employees to approve a proposed enterprise agreement. Section 181(2) provides:

[8] Section 173(1) provides as follows:

[9] The content of the notice of employee representational rights is dealt with in s.174. Section 174(1A) provides that:

Consideration

[10] The meaning of s.174(1A) of the Act was considered in Peabody Moorvale v CFMEU [2014] FWCFB 2042 (Peabody), a Full Bench of the Fair Work Commission said at paragraphs [46] - [47]:

[11] More recently, in Maritime Union of Australia, The v MMA Offshore Logistics Pty Ltd t/a MMA Offshore Logistics and Others [2017] FWCFB 660 (MMA Offshore Logistics), a Full Bench of the Commission considered the validity of a notice which contained the telephone number of the Fair Work Ombudsman in the final paragraph.

[12] Regarding the notice, the Full Bench said, at paragraphs [98] and [101]:

[13] The Full Bench held at paragraph [104]:

[14] I have considered the submissions put by the Applicant in this matter however I accept and adopt the findings in Peabody and MMA Offshore Logistics.

[15] It would appear that, in line with the above mentioned decisions, the notice in this case does not comply with the Act as it departs from the form prescribed in Schedule 2.1 of the Regulations, and is therefore invalid. It seems to follow that as no valid notice of employee representational rights was given to employees, the Agreement cannot be approved.

[16] A notice of employee representational rights that complies with s.174 of the Act is required in order to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. As the notice does not comply with s.174 of the Act, there was no valid notice provided to employees. Following the application of the relevant legislative provisions set out above, I cannot be satisfied that the employees have genuinely agreed to the Agreement pursuant to s.186(2) of the Act.

[17] For the above reasons I cannot approve the Agreement. The application is dismissed.

COMMISSIONER

Appearances:

M Butler for the Applicant

M Jenner for the Association of Professional Engineers, Scientists and Managers, Australia

J Smallbone for the Australian Municipal, Administrative, Clerical and Services Union

Hearing details:

2017

Melbourne by Telephone:

8 March.

Final written submissions:

2 March 2017.

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