Allstaff Pty Ltd
[2010] FWA 1960
•9 MARCH 2010
[2010] FWA 1960 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
s.185 - Application for approval of single enterprise agreement
(AG2010/5974)
Allstaff Pty Ltd and the Construction, Forestry, Mining and Energy Union ACT Branch Collective Agreement 2010-2012
COMMISSIONER DEEGAN | CANBERRA, 9 MARCH 2010 |
[1] This decision concerns an application filed by the Construction, Forestry, Mining and Energy Union (“CFMEU”) on behalf of Allstaff Pty Ltd (“the employer”) on 16 February 2010 for approval of the Allstaff Pty Ltd and the Construction, Forestry, Mining and Energy Union ACT Branch Collective Agreement 2010-2012 (“the agreement”) pursuant to section 185 of the Fair Work Act 2009 (the Act).
[2] The Form 17 – Statutory Declaration provided by the employer in support of the application did not answer questions relating to the pre approval requirements of the enterprise agreement voting process contained in s.180 of the Act. In addition, the statutory declaration did not specify how many employees voted for the agreement or how many votes were received which supported the agreement.
[3] Section 180 of the Act provides as follows:
180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).
Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.
[4] On 23 February 2010, I wrote to the employer and the CFMEU:
“I am prepared to allow a further 7 days for a new statutory declaration (together with a new Form F18 from the CFMEU) containing all the required information to be lodged. Upon receipt of a statutory declaration containing the required information I will give further consideration to approval of the agreement.
If no new statutory declaration in the appropriate form is lodged within the time allowed I intend to refuse the application for approval of the agreement.”
[5] To date, no completed forms have been filed. I therefore cannot be satisfied that the requirements set out in s.180 of the Act have been met nor can I be satisfied that the employees voted in support of the agreement. For these reasons, the agreement cannot be approved.
[6] The application for approval is dismissed.
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