Application by Driver Group P/L

[2009] FWA 1716

[2009] FWA 1716

FAIR WORK AUSTRALIA

DECISION

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

Application by Driver Group P/L
(AG2009/19934)

COMMISSIONER LEWIN MELBOURNE, 14 DECEMBER 2009

Driver Group Drivers Enterprise Agreement 2009.

[1] On 16 November 2009, Driver Group P/L (Driver) lodged an application in Fair Work Australia for the approval of an enterprise agreement. An employer’s declaration in support of the application was provided with the application.

[2] An application for approval of an enterprise agreement must be lodged within 14 days of the agreement being made. On the material before me, the agreement was made on 19 October 2009, and the application for approval was made on 16 November 2009. The application can be accepted out of time if the Tribunal exercises a discretion to do so.

[3] The extent of the delay in filing the application in this matter would not normally, of itself, be fatal to acceptance out of time. However, there are other significant considerations which are set out below, which compel me to the conclusion that the application should not be accepted out of time.

[4] Section 173 of the Fair Work Act 2009 (the Act) requires that an employer who will be covered by a proposed enterprise agreement must take all reasonable steps to notify employees who will be covered by the agreement of the right to be represented by a bargaining agent.

[5] Section 186 of the Act requires that in order to approve an enterprise agreement, (not a greenfields agreement), an agreement must have been genuinely agreed to by the relevant employees.

[6] Section 188 of the Act provides that for an enterprise agreement to be approved, Fair work Australia must be satisfied that the agreement has been genuinely agreed to by the relevant employees having regard to specific statutory requirements. The provisions of s.188(a)(ii) as set out below:

“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given);

…

[7] Section 181 is in the following terms:

“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.

[8] On the material before me, I cannot be satisfied that the provisions of sections 188(1)(a)(ii) and 181(2) have been met. The material indicates that the employees were first called upon to indicate approval of the agreement on 7 October 2009, the last notice of representational right required in relation to the making of the agreement was issued on 16 October 2009 and the agreement purports to have been made on 19 October 2009. Clearly, the statutory requirements have not been met. The statutory requirements referred to above are mandatory. There is no discretion vested in Fair Work Australia to approve an agreement if those requirements have not been met.

[9] For the reasons stated the Agreement cannot be approved. Accordingly, there is no purpose in accepting the application for approval out of time.

COMMISSIONER

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