7 - 10 Split Pty Ltd T/A Seven Ten Split

[2010] FWA 2632

[2010] FWA 2632

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

7 - 10 Split Pty Ltd T/A Seven Ten Split
(AG2010/6903)

Amusement, events and recreation industry
COMMISSIONER CAMBRIDGE	SYDNEY, 1 APRIL 2010

Application for approval of the Seven Ten Split Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Seven Ten Split Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 7-10 Split Pty Ltd T/A Seven Ten Split (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 12 March 2010. The application included a Statutory Declaration of Ang Ly, made on behalf of the Employer and dated 10 March 2010, (the Declaration). The Declaration stated that the Agreement was made on 27 February 2010, thereby satisfying the 14 day lodgement time limit established by s. 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 s. 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 provided was 29 November 2009. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 20 December 2009.

[6] Unfortunately therefore the Agreement does not comply with the requirements of s.181 (2) of the Act.

[7] Further, in this instance some potential difficulties may arise in respect of subsections 180 (5) and 180 (6) of the Act which state:

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement. [Emphasis added]

[8] The Declaration indicated that there was one employee of less than 21 years of age. However there no evidence of any particular step taken by the Employer relevant to the circumstances and needs of the young employee. It may have been that the young employee was invited to have a parent or other older person attend the workplace and /or provide any questions or concerns about the terms of the Agreement on behalf of the young employee.

[9] The difficulty for FWA is that the absence of any mention of anything done by the Employer that connects to the circumstances and needs of young employees would create an evidentiary impediment to any compliance with subsection 180 (5) of the Act.

[10] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application must be dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code G, PR995681>