Ainslie Primary P &C Association After School Care

[2014] FWC 8668

[2014] FWC 8668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ainslie Primary P &C Association After School Care
(AG2014/9330)

DEPUTY PRESIDENT KOVACIC CANBERRA, 2 DECEMBER 2014

Application for approval of the Ainslie Afters Enterprise Agreement 2014-2018

[1] An application has been made by the Ainslie Primary School P&C Association After School Care (the Applicant) for approval of an enterprise agreement known as the Ainslie Afters Enterprise Agreement 2014-2018 (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 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.” [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 commenced on 24 September 2014. The date the last Notice of Employee Representational Rights (NERR) was given to employees was 3 September 2014, which is the twenty first day after the day the NERR was last issued. In other words, voting on the agreement commenced before “at least 21 days after” the last NERR was given to employees as required by s.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 by the employees covered by the agreement as defined in s.188 and as required by s.186(2)(a) of the Act. The application for approval of the Agreement is therefore dismissed.

DEPUTY PRESIDENT

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