Albert & Meyer Pty Ltd; Bernard Laverty Pty Ltd; Gregory & Carr Funeral Services Pty. Limited; James Murray Funeral Directors Pty Ltd T/A James Murray Funeral Directors Pty Ltd; Joseph Medcalf Funeral Services Pty...

[2015] FWCA 2800

[2015] FWCA 2800

FAIR WORK COMMISSION

DECISION

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

Albert & Meyer Pty Ltd; Bernard Laverty Pty Ltd; Gregory & Carr Funeral Services Pty. Limited; James Murray Funeral Directors Pty Ltd T/A James Murray Funeral Directors Pty Ltd; Joseph Medcalf Funeral Services Pty Ltd; Max Perram’s Funeral Service Pty Ltd; Frank T Meighan Pty Ltd
(AG2015/1964)

COMBINED FUNERAL SERVICES ENTERPRISE AGREEMENT 2015

Funeral directing
COMMISSIONER BULL	SYDNEY, 4 MAY 2015

Application for approval of the Combined Funeral Services Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Combined Funeral Services Enterprise Agreement 2015 (the 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] The Commission wrote to the applicant on 1 April 2015, with respect to:

i. Single interest employer test under s.172(5) of the Act;

ii. Nominal expiry date of the Agreement; and

iii. Signed copy of the Agreement to accompany the application.

[3] Correspondence was received from the applicant on 10 April 2015.

Single interest employers

[4] The Commission noted that the application is for a single enterprise agreement, and that the application lists 7 employers who are to be covered by the Agreement.

[5] Pursuant to s.172(2) of the Act, the Commission requested the applicant address how 7 employers may make a single enterprise agreement, and in particular, how the applicant

would satisfy the single interest employer test under s.172(5) of the Act.

[6] The applicant submits that the employers to be covered under the Agreement are
operating in accordance with the definition of a ‘single interest employer’ as defined under s.172(5)(a) of the Act, being “employers engaged in a joint venture or common enterprise”.

[7] A “common enterprise” was defined by Mason J in Australian Softwood Forests Pty Ltd v Attorney General-General (NSW); Ex re Corporate Affairs Commission (1981) 148 CLR 121, 133 (Australian Softwood):

“An enterprise may be described as common if it consists of two or more closely connected operations on the footing that one part is to be carried out by A and the other by B, each deriving a separate profit from what he does, even though there is no pooling or sharing of receipts of profits. It will be enough that the two operations constituting the enterprise contribute to the overall purpose that unites them. There is then an enterprise common to both participants and, accordingly, a common enterprise.”

[8] In this application, the applicants submits that the applicants:

a) Share a common ownership, namely David Walker and Melissa Walker 1;

b) Payroll and accounting are conducted centrally from a common location; and

c) Overall management and operations are overseen by Mr David Walker.

[9] I am satisfied that the applicants are engaged in a common enterprise for the purposes of meeting the requirements under s.172(5) of the Act, as per the decision in Australian Softwood.

Nominal expiry date

[10] The Commission noted that the nominal expiry date of the Agreement specified in 2.1 of the Employers’ statutory declaration in support of an application for approval of an enterprise agreement (F17) differed to the nominal expiry date under clause 7 of the Agreement. The Commission requested the applicant address this discrepancy.

[11] The applicant has submitted an amended F17, signed by Mr Michael Bolton, an employer representative, and Mr Tim Blake, an employee bargaining representative. The amended F17 specifies the nominal expiry date of the Agreement to be four years from the date of approval, which is consistent with clause 7 of the Agreement.

Signed copy of the Agreement to accompany the application

[12] Section 185(2)(a) of the Act provides that an application for an enterprise agreement approval must be accompanied by a signed copy of the agreement. The submitted copy of the Agreement did not contain signatures as required under the Act. The Commission noted to the applicant that if the s.185(2)(b) requirement is not met, the application is not a valid application.

[13] Further to the Commission’s correspondence, the applicant has provided a signed copy of the Agreement which meets the requirements for the signing of an enterprise agreement as per reg. 2.06A(2) of the Act.  2

[14] Funeral and Allied Industries Union of NSW, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with section 201(2) of the Act, I note that the Agreement covers this employee organisation.

[15] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[16] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 11 May 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

COMMISSIONER

 1   The applicant submitted ASIC company extracts of the applicants.

 2   Regulation 2.06A(2) of the Act specifies that a copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement, and at least 1 representative of the employees covered by the Agreement.

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