[1] An application has been made for approval of an enterprise agreement known as the Melsteel Constructions Pty Ltd, on site Enterprise Agreement 2010 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Melsteel Constructions Pty Ltd (the Employer).

[2] The application included a copy of the Notice of employee representational rights which was given to employees.

[3] Section 174 of the FW Act sets out the content of the notice of representational rights:

"174 Content 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.

Content of notice - employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(b) in a matter before FWA that relates to bargaining for the agreement.

Content of notice - default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice - bargaining representative if a low-paid authorisation is in

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice - copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee's employer).

Regulations may prescribe additional content and form requirements etc.

(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees."

[4] Regulation 2.05 of the Fair Work Regulations 2009 provide for the notice is in a prescribed form.

"2.05 Notice of employee representational rights - prescribed form

For subsection 174 (6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed."

"Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174 (6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies - include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union's status as your representative.

[If a low-paid authorisation applies to the agreement - include:]

Fair Work Australia has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union's status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument - include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

● the nominal expiry date of your existing agreement has passed; or

● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Australia Infoline on [insert number]."

[6] The notice provided by the employer in this instance did not provide the following:

"If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union's status as your representative."

[7] The Form F17 - Employer Declaration in Support of Application for Approval of Enterprise Agreement identified that the Notice of employee representational rights was issued to employees on 23 August 2010 and that the Employer initiated bargaining on 24 August 2010 of a meeting of all employees. The Notice of employee representational rights as issued by the Employer was accompanied by a nomination form in the following terms:

I, _______________ would like to nominate _________________ as my "Enterprise agreement" bargaining representative.

Signed ___________________________ Date ___________________"

[8] It appears that the combined effect of excluding from the Notice of employee representational rights the paragraph concerning union members having the union as their bargaining representative and issuing employees with the nomination form, was to ensure that employees were not advised of their rights in relation to when a union would be their default bargaining representative and that if an employee wanted to be represented that the employee would be directed towards appointing a specific bargaining representative in lieu of a union being the default bargaining representative.

[9] Not only was there non compliance with s.174(3) but it appears that the combination of the defective Notice of employee representational rights and the issuing of a nomination form would effectively misrepresent to employees their rights in relation to bargaining representatives.

[10] As the Notice of employee representational rights did not comply with the requirements in section 174 then no Notice of employee representational rights has been provided to employees.

[11] The Agreement cannot be approved and I dismiss the application for approval.

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