1st Fleet Pty Ltd
[2011] FWA 3326
•27 MAY 2011
[2011] FWA 3326 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
1st Fleet Pty Ltd
(AG2011/1051)
Storage services industry
COMMISSIONER CAMBRIDGE | SYDNEY, 27 MAY 2011 |
Application for approval of the 1st Fleet Warehousing & Distribution - National Union of Workers Collective Agreement 2010
[1] An application has been made for approval of an enterprise agreement known as the 1st Fleet Warehousing & Distribution - National Union of Workers Collective Agreement 2010(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 1st Fleet Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Melbourne on 17 May 2011. The application included a Statutory Declaration of Robert Rickard made on behalf of the Employer and dated 11 May 2011, (the Declaration). The Declaration stated that the Agreement was made on 3 May 2011. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.
[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[4] As can be seen from subsection 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.
[5] In this instance, the Declaration stated that the date on which the last notice of representational rights was given to an employee who will be covered by the Agreement was 4 May 2011. The Declaration also stated that the date on which voting for the Agreement commenced was 18 April 2011. Therefore the voting for approval of the Agreement commenced before the date on which the last notice of representational rights was given to anemployee who would be covered by the Agreement. The notice of representational rights was given the day after the Agreement was made.
[6] Consequently the Agreement does not comply with the requirements of subsection 181 (2) of the Act. The Declaration included an explanation for why the notice of representational rights was given after the date on which voting for approval of the Agreement commenced. However the Act does not provide any capacity for FWA to waiver or vary the time requirements of subsection 181 (2). These provisions of the Act are mandatory and FWA simply has no power to permit alteration to this particular procedural time limit.
[7] Unfortunately the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.
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