Advanced Mining & Civil

[2013] FWC 5220

[2013] FWC 5220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Advanced Mining & Civil
(AG2013/4655)

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 7 AUGUST 2013

Change of employer name - legislative requirements.

[1] Advanced Mining & Civil (the Applicant) made an application under s.210 of the Fair Work Act 2009 (the Act) to vary the Advanced Earth Pty Ltd Western Australia Base Enterprise Agreement 2012 (the Agreement). The Agreement was approved on 10 May 2012 and has a nominal expiry date of four years from the date of approval.

[2] The application initially consisted of only the Form F23 Application for Approval of Variation of Enterprise Agreement and a copy of the Agreement which did not incorporate to proposed variations. The Form F23 relevantly states:

“Our employer covered by this agreement no longer goes by the Registered Name of ‘Advanced Earth’ and the Trading Name of AE Unit Trust and is no longer under the following ABN and ACN number:

ABN: 74012137224

ACN: 107715453

We require our current Base Enterprise Agreement to updated with our new Registered Name of ‘Advanced Mining & Civil’ and Trading Name being AMC Unit Trust with the new ABN and ACN Numbers being:

ABN: 43138916497

ACN: 153928020”

[3] My chambers contacted the Applicant advising of the failure of the application to meet set requirements, namely provision of supporting forms, a signed copy of the variation and a copy of the Agreement incorporating the proposed variations with those variations highlighted. The Applicant subsequently lodged the Form F23A Employer’s Declaration in Support of Approval of Variation of Enterprise Agreement. The Form F23A relevantly states:

“2.5 Please specify the steps taken by the employer (at least 7 days before the start of the voting process) to notify all affected employees of the time and place at which the vote was to occur and the voting method to be used: (ss.211(3) and 180(3))

No voting method took place since it was not required.

2.6 Please specify the steps taken by the employer to explain the terms of the variation, and the effect of those terms, to relevant employees: (ss.211(3) and 180(5))

[Note: Your answer must include information on the manner in which the explanation took account of particular circumstances and needs of the affected employees (e.g., where the employees were from a non-English speaking background, were young employees or did not have a bargaining representative).]

No terms to the agreement are being made that will affect our employees. Only Business name change is required.”

[4] Accompanying the Form F23A was a copy of the Agreement which still did not incorporate proposed variations, but rather was marked at each place the Applicant wanted variations made.

[5] On my request my chambers contacted the Applicant to advise that in my view, notwithstanding the variation only involves a name change, the requirements of the Act necessitate a vote and the consent of those covered by the Agreement. Further, that if all that had occurred was a change in name then the existing agreement would continue in operation regardless.

[6] The Applicant was asked to advise whether they wished to withdraw their application and proceed to comply with the statutory requirements for a new application or to continue with the current application and attempt to overcome the concerns of the Commission. The Applicant has not responded to this request.

[7] It is apparent that the process followed by the Applicant to secure the approval of the affected employees does not meet the requirements of the Act. There also continue to be deficiencies in the application made to the Commission. I am not satisfied the requirements for me to approve the application have been met. The application is dismissed.

[8] I note that the originating Form F23 contained a request in the following terms:

“We also require the same Base Enterprise Agreement to be made with the another company Registration Name of ‘Advanced Piping Solutions’ and Trading name being APS Unit Trust with the ABN: 50279468890 and ACN: 159839308.”

[9] This request was not elaborated upon. Whether it is a request for the approval of a new agreement in like terms or a request to add an additional respondent to the Agreement is unclear. Given the findings above it is not necessary to address the deficiency of this application to achieving either result.

DEPUTY PRESIDENT

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