Fair Work Act 2009_

s.185 - Enterprise agreement

Application for approval of the Serco Immigration Services Agreement 2015.

[1] Serco Australia Pty Limited ("Serco") has made an application pursuant to s.185 of the Fair Work Act 2009 ("the Act") for the approval of an enterprise agreement titled the Serco Immigration Services Agreement 2015 ("the Agreement").

[2] The provisions of the Act relevant to this application as to notices of employee representational rights read as follows:

"173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

174 Content and form of notice of employee representational rights

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

(a) contain the content prescribed by the regulations; and

(c) be in the form prescribed by the regulations. …"

[3] The prescribed version of the notice of employee representational rights is set out in Schedule 2.1 of the Fair Work Regulations 2009 ("the Regulations").

[4] Unfortunately, so far as this application is concerned, Serco issued an obsolete version of a notice of employee representational rights in connection with the bargaining for the Agreement.

[5] Serco submitted, among other matters, that the differences between the version of the notice it issued and the prescribed version of the notice are, for example, "trivial, insignificant and inconsequential". Reference was made to judgments including Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and McRae v Coulton (1986) 7 NSWLR 644 in relation to matters concerning the notice. Reference was also made to s.575(1) of the Act and s.25B(1)(b) of the Acts Interpretation Act 1901 (Cth). Serco submitted the decision of the Full Bench of the Commission in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, which considered notice requirements, was "easily distinguished".

[6] Two unions which were involved in the bargaining for the Agreement made submissions. United Voice adopted Serco's submissions and also addressed some additional matters in further supporting Serco's submissions. The Union of Christmas Island Workers agreed with the submissions of Serco and United Voice.

[7] The overall thrust of the submissions of Serco and the unions was that the approval of the Agreement was not impeded by the notice issued by Serco.

[8] While I accept the matters as to the particular notice considered in Peabody Moorvale 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.

G. Thomson for the Union of Christmas Island Workers

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