Adapt-A-Lift Rentals & Sales Pty Ltd T/A Adaptalift Hyster

[2014] FWC 5112

[2014] FWC 5112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adapt-A-Lift Rentals & Sales Pty Ltd T/A Adaptalift Hyster
(AG2014/6808)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 29 JULY 2014

Application for approval of the Adapt-A-Lift Hyster Collective Agreement (Victoria & Tasmania) 2014 - approval refused.

[1] An application has been made by Adapt-A-Lift Forklift Rentals and Sales Pty Ltd T/A Adaptalift Hyster (Applicant) for approval of an enterprise agreement known as the Adapt-A-Lift Hyster Collective Agreement (Victoria & Tasmania) 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Section 181 of the Act states:

“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 untilat 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.” [underlining added]

[3] Based on the information contained in the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement, voting on the agreement by employees occurred on 4 July 2014 which is the twenty first day after 13 June 2014 (the date the last Notice of Employee Representational Rights (NERR) was given to employees). In other words, voting on the agreement commenced before “at least 21 days after” the last NERR was given to employees as required bys.181(2) of the Act.

[4] As such, the agreement was not properly “made” in accordance with s.182 of the Act, nor was it genuinely agreed to as defined in s.188 of the Act. The application for approval of the Agreement is therefore dismissed.

DEPUTY PRESIDENT

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