Application by East Pilbara Independence Support Incorporated

[2009] FWA 367

[2009] FWA 367

FAIR WORK AUSTRALIA

DECISION

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

Application by East Pilbara Independence Support Incorporated
(AG2009/12189)

Health and welfare services
COMMISSIONER WILLIAMS	PERTH, 25 SEPTEMBER 2009

Approval of Enterprise Agreement.

[1] This decision concerns an application for approval of an enterprise agreement under section 185 of the Fair Work Act 2009 (the Act).

[2] An application has been made by East Pilbara Independence Support Incorporated (the applicant) which completed a form F16 – Application for Approval of Enterprise Agreement and attached a number of additional documents.

[3] The additional documents included a document entitled “Contract of Employment - 1 July 2008.”

[4] This document consists of 28 clauses. Clause 1 Operation of Contract of Employment indicates that this document came into operation on 1 July 2008. Further clause 2 Parties Bound provides as follows :

“This contract of employment shall be binding on the management committee of East Pilbara Independence Support Inc and the employees of East Pilbara Independence Support Inc.”

[5] This document is not signed by any person or party. This document does not include any wages or salaries.

[6] In addition attached to the application are 22 individually addressed documents which appear to be offers of employment for various positions at East Pilbara Independence Support Incorporated. These documents include various commencement dates ranging from July 2007 through to June 2009 and have been signed by what appears to be individual employees and the manager.

[7] With respect to the F16 – Application for Approval of Enterprise Agreement the applicant has filled out this form by indicating in answer to the majority of the questions that they are not applicable. In short none of the required information has been provided that would be necessary for Fair Work Australia to determine whether or not the general requirements and additional acquirements set out in section 186 and 187 of the Fair Work Act 2009 have been met by the applicant.

[8] Sections 186, 187 and 188 are set out below:

186 When FWA must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) FWA must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) FWA must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

(5) FWA must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which FWA approves the agreement.

Requirement for a term about settling disputes

(6) FWA must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187 When FWA must approve an enterprise agreement—additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before FWA approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), FWA must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

(4) FWA must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

Requirements relating to greenfields agreements

(5) If the agreement is a greenfields agreement, FWA must be satisfied that:

(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

(b) it is in the public interest to approve the agreement.

188 When employees have genuinely agreed to an enterprise agreement

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:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(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); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[9] The Fair Work Act 2009 provides that Fair Work Australia can approve an enterprise agreement subject to that enterprise agreement meeting the general and additional requirements provided for in section 186 and 187 of the legislation. In this case from the information provided by the applicant I am not satisfied that there is an enterprise agreement within the meaning of the Fair Work Act 2009 that can be considered for approval at all. Further I am not satisfied that the requirements within section 186 and 187 have been satisfied. Consequently this agreement cannot be approved.

[10] This application is dismissed.

[11] I recommend that the applicant seek private professional assistance or contact the Fair Work Ombudsman for advice on the requirements for agreement making under the Fair Work Act 2009.

COMMISSIONER

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