Able Roadwork Traffic Analysis
[2012] FWA 5153
•15 JUNE 2012
[2012] FWA 5153 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Able Roadwork Traffic Analysis
(AG2012/1782)
COMMISSIONER BULL | SYDNEY, 15 JUNE 2012 |
Application for approval of the Able Roadwork Traffic Analysis Enterprise Agreement 2012-2015. Notice to withdraw, employer declaration not signed, application dismissed.
[1] Able Roadwork Traffic Analysis Pty Ltd (the Applicant) lodged via their solicitors K.P. O’Donnell & Associates an application for approval of the Able Roadwork Traffic Analysis Enterprise Agreement 2012 - 2015 (the Agreement) on 25 May 2012.
[2] The Applicant also filed a Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement.
[3] Correspondence dated 30 May 2012 was received from the Branch Secretary of the Australian Workers’ Union (the AWU) which requested that the Agreement approval application be listed for a formal hearing. The AWU while not a bargaining agent for any employees covered by the Agreement raised a number of issues that they wished to be heard on as to why the Agreement should not be approved.
[4] On 31 May 2012 my Associate emailed the Applicant and their solicitors requesting a written response to the concerns of the AWU to be filed by 8 June 2012.
[5] On 4 June the Applicant’s solicitors wrote requesting that the approval application be withdrawn.
[6] On 6 June my Associate contacted the Applicant’s solicitors to ascertain under what provision/s of the Fair Work Act 2009 (the Act) the Applicant was seeking to withdraw their application following the making of the Agreement.
[7] Further the Applicant was requested to provide a signed Employer Declaration Form (F17) as the original declaration submitted purported to be made by a Michael Grima was blank in respect to the Signature of person making the declaration. A signed employer declaration was requested by 14 June 2012 otherwise the Agreement approval application would be dismissed.
[8] On 7 June the Applicant’s solicitors advised by email that they acknowledged that the Employer Declaration was not properly executed and that it was appropriate for the application to be dismissed.
Withdrawal/Discontinuance of Application
[9] While there is a legislative imperative that an agreement once made, is to be filed within 14 days [see ss. 182(1), 185(2)(b)] there appears no restriction on an applicant unilaterally discontinuing its approval application prior to its approval by Fair Work Australia (FWA) (see CEPU v CJ Mansfield 1).
[10] Section 588 of the Act provides that a person who has made an application to FWA may discontinue the application in accordance with the procedural rules (if any). The Fair Work Australia Rules 2010 provide for a Form 50 Notice of Discontinuance to be completed, however rule 4 allows FWA discretion to dispense with compliance which I do on this occasion, accepting the correspondence of 4 June as an appropriate notice of intention to discontinue the application.
Failure to Provide Valid Declaration
[11] Section 185(2)(b) requires that any declarations that are required by the procedural rules must accompany an application for approval of an agreement. Rule 6.2 states that an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1. Schedule 1 prescribes Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement in relation to s.185 enterprise agreement approval applications.
[12] A valid employer declaration has not been received by the Tribunal and the period for compliance with this requirement provided to the employer has now expired, with the employer’s solicitors advising in their 7 June 2012 correspondence that the application should be dismissed.
[13] The Agreement approval application is dismissed on the basis that the employer has made an application to discontinue the application and that no valid employer declaration has been received.
COMMISSIONER
1 [2011] FWAFB 6845
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