Application by Mohamad Khalil

[2016] FWC 3556

[2016] FWC 3556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Application by Mohamad Khalil
(AG2015/6445)

COMMISSIONER GREGORY MELBOURNE, 1 JUNE 2016

Application for approval of the Guardium Group Enterprise Agreement 2015.

[1] This decision deals with an application by Mohamad Khalil for approval of the Guardium Group Enterprise Agreement 2015.

[2] The application was filed with the Commission on 20 October 2015. On 6 November 2015 the Commission responded by forwarding a letter to the Applicant dealing with a range of matters concerning the terms of the proposed Agreement and issues to do with satisfaction with the requirements of the “better off overall” test.

[3] On 12 November 2015 a response was received from solicitors acting on behalf of the Applicant, which included a proposed undertaking in response to the matters raised by the Commission in its earlier correspondence. On 20 November 2015 the Commission responded by advising that the terms of the proposed undertaking did not deal with the concerns raised previously. The Commission also indicated it was prepared to consider any further revised undertaking. Alternatively, the matter could be set down for hearing to enable further submissions and evidence to be provided in support of the application.

[4] On 24 November 2015 a response was received from the Applicant’s representative requesting further time in which to provide a response, and a response was then provided on the following day. However, on 27 November 2015 the Commission again replied indicating it still had concerns about satisfaction with the requirements of the “better off overall” test. It also made reference to a number of errors and typographical mistakes in a further draft undertaking provided. It also reiterated that the terms of any proposed undertaking needed to be provided to the employee bargaining representatives, as this did not appear to have been done in respect of any of the draft undertakings proposed.

[5] On 2 December 2015 a further response was received from the Applicant’s representative providing another draft undertaking, which was proposed in satisfaction of the Commission’s ongoing concerns. The Commission responded on 14 January 2016 indicating it was still concerned about the nature of the application and the terms of the proposed Agreement.

[6] The Commission also sought further information at this time in response to details contained in the Employer’s Statutory Declaration regarding the number of employees to be covered by the proposed Agreement. Reference was also made to the fact that some individuals, who were indicated to be covered by the proposed Agreement and acting as employee bargaining representatives, also appeared to be part of the Applicant’s management team. The Commission continued to advise that this potentially raised issues about whether the proposed Agreement can be said to have been “genuinely approved,” and asked that further explanation be provided about this issue as well. It also reiterated the concerns raised previously about satisfaction with the requirements of the “better off overall” test, which particularly concerned the circumstances of permanent and casual employees, and the entitlements in respect to overtime payments.

[7] The Commission continued by indicating, “[i]n conclusion, my preliminary view at this point is that the terms contained in the proposed Agreement do not satisfy the requirements of the better off overall test, and therefore it cannot be approved. It might therefore be appropriate to consider withdrawing the application, in which case a Notice of Discontinuance will be forwarded to you. However, the matter can be set down for hearing if you would like to provide further submissions and evidence in support of the application”. 1 The Commission also requested confirmation of the Applicant’s position within 7 days.

[8] On 19 January 2016 the Applicant’s representative asked to speak to the Commission about the matter and the Commission provided contact details in response. On 2 February 2016, when nothing further had been heard, the Commission sent another email requesting the Applicant’s representative to make contact to confirm its client’s position.

[9] On 11 April 2016 the Commission sent a further email to the Applicant’s representative reiterating the previous issues raised, as well is providing further details about a number of those matters. The Commission also indicated “… if your client wishes to proceed with the application it will be listed for hearing at the earliest possible opportunity to enable further submissions and evidence to be provided in support of the application.” 2 The Commission also asked that a response be provided “at your earliest convenience”.3

[10] On 18 April 2016 the Applicant’s representative advised it was obtaining instructions from its client and would be in further contact shortly. On the following day the Commission sent a further email asking for a confirmed position to be provided by close of business on Friday, 22 April 2016. The Commission received a response on the same day indicating that instructions were being sought from the Applicant, and a response would be provided by 27 April 2016. The Commission again replied indicating confirmation of the Applicant’s position should be provided as soon as possible

[11] Since that time the Commission has not received any further contact or response of any kind from the Applicant or the Applicant’s representative.

[12] Section 587 of the Fair Work Act 2009 provides the Commission with broad powers to dismiss an application. Given the circumstances referred to above, including the advice provided previously about the matter being discontinued, and the fact it is now more than 6 weeks since any contact or response has been provided on behalf of the Applicant, despite previous requests, I consider it appropriate in all the circumstances to dismiss the application. The application is accordingly dismissed.

COMMISSIONER

Final written submissions:

Final letter received from the Applicant on 19 November 2016.

 1   Letter sent from Commissioner Gregory to Charles Antoun by email dated 14 January 2016.

 2   Letter sent from Commissioner Gregory to Nuriye Gencay by email dated dated 11 April 2016.

 3   Ibid.

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