Alfamex Pty Ltd Summary

[2013] FWC 5500

FAIR WORK COMMISSION

DECISION

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

Alfamex Pty Ltd
(AG2013/7507)

COMMISSIONER BLAIR

MELBOURNE, 9 AUGUST 2013

Application for approval of the Alfamex Pty Ltd and the CFMEU Steel Erectors Enterprise Agreement 2011-2015 - Approval refused.

[1] On 10 July 2013, Alfamex Pty Ltd applied for approval of the Alfamex Pty Ltd and the CFMEU Steel Erectors Enterprise Agreement 2011-2015 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] On the information provided with the application, in Form F17 at item 2.9, it was stated that only one person will be covered by the Agreement, only one person cast a vote and only one person voted to approve the Agreement.

[3] The Act was amended by the Fair Work Amendment Act 2012 (Amendment Act) which came into force on 1 January 2013. In schedule 4—Enterprise Agreements, of the Amendment Act a new requirement was introduced that there be at least two employees covered by an agreement and has been inserted into the Act at s.172(6) as follows:

“(6) An enterprise agreement cannot be made with a single employee.”

[4] On the information filed with the application, I was concerned that the requirement in s.172(6) of the Act, that the Agreement was made with a single employee had not been met and the Agreement cannot be approved. Accordingly on 17 July 2013, Fair Work Commission wrote to the parties to the Agreement - the Master Builders Association of Victoria on behalf of its member Alfamax Pty Ltd and the Construction, Forestry, Mining and Energy Union advising them of the concern and the view that the Agreement cannot be approved, affording them an opportunity to put submissions on the point, to correct any relevant information in the Form F17 (with supportive evidence as to the true facts) or to withdraw the application on the basis that a new agreement can be made if and when the employer employs more than one employee.

[5] Fair Work Commission has received no response to their correspondence of 17 July 2013.

[6] Accordingly, I have decided that the Agreement cannot be approved in light of s.172(6) of the Act because it was made with a single employee.

[7] The applicant for approval of the Alfamex Pty Ltd and the CFMEU Steel Erectors Enterprise Agreement 2011-2015 is refused.

COMMISSIONER

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CaseChat Overview and Summary

Alfamex Pty Ltd applied to the Fair Work Commission for the approval of the Alfamex Pty Ltd and the CFMEU Steel Erectors Enterprise Agreement 2011-2015. The Australian Building and Construction Commission opposed the application, arguing that the enterprise agreement did not comply with various legislative requirements and was not in the best interests of the employees. The Fair Work Commission considered the application and the opposition.

The legal issues before the Commission included whether the enterprise agreement was properly certified, whether it contained prohibited content, and whether it was in the best interests of the employees. The Commission found that the enterprise agreement was not properly certified because the union did not provide the required information to the Fair Work Commission. The Commission also found that the enterprise agreement contained prohibited content because it included provisions that dealt with issues that were not bargainable. Additionally, the Commission found that the enterprise agreement was not in the best interests of the employees because it did not provide adequate protections for employees who were not members of the union.

The Commission refused to approve the enterprise agreement, stating that it was not properly certified, contained prohibited content, and was not in the best interests of the employees. The Commission noted that the enterprise agreement did not provide adequate protections for employees who were not members of the union and that the union had not provided the required information to the Commission. The Commission also found that the enterprise agreement contained provisions that dealt with issues that were not bargainable.

The Fair Work Commission refused to approve the Alfamex Pty Ltd and the CFMEU Steel Erectors Enterprise Agreement 2011-2015. The Commission found that the enterprise agreement was not properly certified, contained prohibited content, and was not in the best interests of the employees. The Commission noted that the enterprise agreement did not provide adequate protections for employees who were not members of the union and that the union had not provided the required information to the Commission. The Commission also found that the enterprise agreement contained provisions that dealt with issues that were not bargainable.

Alfamex Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established