A.P.T.R. Pty Ltd and SNA Group Pty Ltd

[2018] FWC 3343

[2018] FWC 3343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

A.P.T.R. Pty Ltd and SNA Group Pty Ltd
(AG2017/6464)

COMMISSIONER CAMBRIDGE SYDNEY, 8 JUNE 2018

Application for approval of the Coronis Queensland Enterprise Agreement 2017 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Coronis Queensland Enterprise Agreement 2017 - 2021 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). It has been made by A.P.T.R. Pty Ltd and SNA Group Pty Ltd (the employers). The Agreement is a single-enterprise agreement.

[2] The application was lodged with the Fair Work Commission (the Commission) at Brisbane on 19 December 2017. On 17 May 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration (Form F17) of Karuna Dimelow made on behalf of the employers and dated 4 December 2017 (the Declaration).

[3] The Declaration is most notable for its absence of important content. For instance, the Declaration does not provide any indication or specification of; the notification time; the date of the issuing of the last Notice of Employee Representational Rights (NERR); the date on which the voting for the Agreement commenced; the date on which the Agreement was made; how many employees cast a valid vote; and how many employees voted to approve the Agreement. Consequently, the Commission is unable to ascertain, inter alia, whether the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[4] In addition to the Declaration, the material filed with the application included an unsigned letter dated 4 December 2017 of a Michael Cosgrove the Director of Rivercity Consulting Pty Ltd (the Cosgrove letter). The Cosgrove letter referred to the Agreement, and it was addressed to “Nominated Bargaining Representatives” and it included an addendum which was said to “… form part of the lodgement documents to the Fair Work Commission seeking approval of the above-mentioned agreement.”

[5] The addendum to the Cosgrove letter contained information which appeared to reference various paragraphs of the Declaration where information had not been provided. For instance, the addendum to the Cosgrove letter contained the following content:

“Point 2.8 in order as required:

24th January 2017

24th January 2017

18th September 2017

Point 2.10

240 Employees will be covered by the agreement

124 have cast a valid vote

115 employees voted to approve the agreement.

The agreement will be declared to have been made as of the 5th December 2017”

[6] Consequently, if the material in the addendum to the Cosgrove letter was to be accepted by the Commission, the Declaration and the Cosgrove letter were made before the Agreement was made. This proposition is somewhat untenable, and the material provided or omitted in the Declaration, the Cosgrove letter, and its addendum, introduces significant concern as to whether the requirements of ss. 186, 187 and 188 of the Act could possibly be met.

[7] Further concern has been identified with the content of the NERR. The need for close attention and care with the NERR cannot be overstated. The NERR is an important document and its content must strictly comply with the requirements of the Act and the Regulations. In this instance, the NERR included the following terms:

“SNA Group Pty Ltd and APTR Pty Ltd give notice that it is bargaining in relation to an enterprise agreement Coronis Realty Queensland Enterprise Agreement 2017 - 2021 which is proposed to cover employees that cover specific classifications within both entities.”

[8] These terms contained in the NERR refer to an enterprise agreement with a different name, and, more importantly, these terms do not properly or clearly identify those persons who would be covered by any proposed enterprise agreement.

[9] In addition, the Agreement is a document that is deficient both in content and construction. The Agreement does not contain numbering for the various clauses that it contains, and in many respects it provides vague and generalised provisions which would be open to ambiguity. Further, although some of the rates prescribed under the Agreement are up to 42.62% above comparative Award reference instrument rates, in other instances the rates are also up to 8.13% below comparable Award rates. I note that even if the various deficiencies that can be readily identified in the Agreement could be addressed by way of the provision of Undertakings, any objectively determined prognosis for the application would create a circumstance that offended subsection 190 (3) (b) of the Act.

[10] Part 2-4 of the Act includes various mandatory procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. In this instance, the material provided and omitted in the Declaration, the Cosgrove letter, and its addendum has provided serious concern about the accuracy and or integrity of the information that has been presented to the Commission in an attempt to meet the mandatory procedural requirements stipulated by Part 2-4 of the Act.

[11] Consequently, the Commission has not been satisfied that the requirements of, in particular, subsections 182 (1), 180 (4) and 185 (3) of the Act have been met. Further, the Commission has not been satisfied that the Agreement has been generally agreed to by the employees covered by it.

[12] Regrettably, in this instance the application has contained serious deficiencies. The nature and extent of these deficiencies, when combined with aspects of the material presented to the Commission, have established a plain incapacity for any potential for rectification.

[13] Unfortunately the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused.

[14] The application is dismissed.

COMMISSIONER

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