Application by E A Negri Pty Ltd

[2019] FWC 5159

[2019] FWC 5159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Application by E A Negri Pty Ltd
(AG2019/959)

COMMISSIONER PLATT ADELAIDE, 25 JULY 2019

Application for approval of the E A Negri Pty Limited Enterprise Agreement 2019-23.

Summary

[1] An application has been made for approval of an enterprise agreement known as the E A Negri Pty Limited Enterprise Agreement 2019-23 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by E.A. Negri Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 27 June 2019.

[3] On 3 July 2019, I conducted telephone conferences with the parties to seek clarification about aspects of the Agreement. The Applicant was represented by Mr Richard Negri.

[4] The issues of concern discussed with Mr Negri included:

•  That the Agreement signatories had not provided their address as required by the Fair Work Rules 2009 in accordance with s.185(2) of the Act.

•  No notification date had been provided.

•  A copy of the Notice of Employee Representational Rights (NERR) had not been provided.

•  Further information about the distribution of the Agreement and voting information was required.

•  The date of the review of the Agreement appeared to have occurred after the Agreement was made.

•  The nominal expiry date detailed in the Agreement exceeded the maximum term permitted.

•  The Agreement’s consultation term did not appear to meet the requirements of the Act.

•  The Agreement did not contain a definition of shift worker for the purposes of the National Employment Standards (NES).

•  The operation of the NES precedence at clause 4.4.5 of the Agreement was unclear.

•  A number of the annual leave provisions were inconsistent with the NES.

•  The Better Off Overall Test (BOOT) did not appear to have been met.

[5] Mr Negri undertook to respond to the issues raised and provide the information requested and any Undertakings by 10 July 2019.

[6] No material was filed by the Applicant, and by email on 10 July 2019 the filing period was extended to 12 July 2019. The Applicant was advised that a failure to file material by 12 July 2019 would result in the matter being listed for Hearing.

[7] On 11 July 2019, Mr Negri sought the matter be adjourned for 10 days, no reason for that request was provided. The adjournment application was refused noting that the time had already been extended to 12 July 2019.

[8] The matter was listed for Hearing on 18 July 2019. The Applicant was requested to file any material he wished to be considered by the close of business on 17 July 2019.

[9] On 16 July 2019 the Applicant sought that the Hearing be adjourned. The Applicant was refused for reasons contained in an email on the same date. The Applicant was reminded of the issues raised at the Conference on 3 July 2019 and provided with web links to a number of reference documents. A link to an audio recording of the Conference was also provided.

[10] A Hearing was conducted on 18 July 2019. Mr Negri continued to represent the Applicant. Mr Negri had provided a revised Form F17 and an Undertaking. A discussion was held concerning the pre-approval steps. As a result of the information advised by Mr Negri, it appeared that the pre-approval steps required by s.180 of the Act had not been met. Mr Negri was advised that the Undertakings provided did not satisfactorily address all of the issues raised. I again summarised the issues that may prevent the approval of the Agreement and the further information that I required. Mr Negri advised he would prioritise the matter and provide further materials.

[11] The Hearing was adjourned until 10:00am on 24 July 2019.

[12] Mr Negri was directed to ensure that Mr Cooper (an employee bargaining representative who until the Hearing had been described as an employer bargaining representative) and the four (4) employees who voted for the Agreement were to attend the Hearing and file witness statements by those persons as to the conduct of the pre-approval processes. Mr Negri was advised to seek professional advice and advised that the Hearing on the 24 July 2019 would be his last chance to persuade the Commission that the Agreement should be approved.

[13] Mr Negri failed to provide any further information or attend the Hearing on 24 July 2019. No other persons attended.

Consideration

[14] I have considered the material contained in the revised F17, the verbal information provided by Mr Negri on 18 July 2019, the Agreement and the Undertaking provided.

[15] The Applicant has been given ample opportunity to address and/or make submissions on the apparent deficiencies, including the provision of an Undertaking.

[16] I am not satisfied that the NERR complies with the requirements of s.174(1A).

[17] I am not satisfied that the employees have genuinely agreed to the Agreement as defined in s.188.

[18] I am not satisfied that the requirements of s.186(5) have been met.

[19] The Agreement (including the Undertaking filed) does not satisfy me that all employees that would be covered by the Agreement would be better off overall as required by s.186(2)(d) of the Act.

[20] Accordingly, I am not satisfied that each of the requirements of ss.186, 188, and 190 of the Act as are relevant to this application for approval have been met, and on that basis, the application is dismissed.

COMMISSIONER

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