AsClear Pty Ltd

[2011] FWA 2188

[2011] FWA 2188

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AsClear Pty Ltd
(AG2010/12382)

Building, metal and civil construction industries
COMMISSIONER GAY	MELBOURNE, 8 APRIL 2011

AsClear Pty Ltd and AWU Esso Onshore Maintenance Agreement 2010.

[1] On 15 July 2010 an application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by AsClear Pty Ltd seeking approval of the AsClear Pty Ltd and AWU Esso Onshore Maintenance Agreement 2010 (the agreement).

[2] As questions arose as to the last date of giving employees to be covered by the agreement the notice of representational rights and the date upon which the employer requested the employees to approve the agreement by voting for it, contact was made with the AWU official involved and on 10 August 2010 was sought to be made with the employer.

[3] On 9 December 2010 my associate wrote to Mr L Willis, Director of AsClear Pty Ltd on whose behalf Mr Willis had signed a Statutory Declaration before a Sergeant at the Morwell Police Station. The 9 December correspondence invited Mr Willis to communicate with Fair Work Australia if it remained the employer’s desire for the agreement to be approved. The letter further advised that should approval still be sought it would “be necessary for the issues raised by the Commissioner to be addressed.”

[4] On 28 January I wrote to Mr Willis and Mr P Reilly, the AWU officer with whom I had had telephone dealings in connection with the application, in the following terms;

“Re: AG2010/12382 - AsClear Pty Ltd and AWU Esso Onshore Maintenance Agreement 2010

Following a series of contacts in 2010 this letter is intended to set out several aspects of the application made in AG2010/12382 relevant to Fair Work Australia approving the agreement.

It will be necessary for the concerns set out below to be addressed in order for the application to proceed.

In Form F17, the Employer’s Statutory Declaration, important information is provided at questions 2.6 and 2.7 as to the date on which the employer first requested the employees to approve the agreement by voting for it (s.181) and the date on which the employer provided last notice to employees as to employee representational rights (s.173(1)).

In response to question 2.7 Mr Willis’ Declaration advises that the last notice to employees giving notice of employee representational rights was given on Thursday 10 June 2010.

In response to question 2.6 the Declaration further states that the date on which the employer first requested that the employees approve the agreement by voting for it was Thursday 24 June 2010.

Relevantly section 181 of the Fair Work Act provided that an employer request for employees to approve a proposed enterprise agreement “...must not be made until at least 21 days after the day on which the last notice under section 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.”

On the information presented with the Application there is likely to be a significant impediment to approval, subject, of course, to anything you or the AWU wish to put.

Please set out any views you think relevant to this question or, if it is preferred, I am happy to call the application on for hearing.

Please feel free to contact me should there be any aspect of this matter which you wish to discuss.

Should there be no response from either party by close of business on 9 February 2011 the application will be dismissed.

Yours sincerely

Commissioner Gay.”

[5] No response to this correspondence has been received in my office.

[6] On the basis of the information provided in the employer’s undated Declaration I am unable to conclude that the employer’s request on 24 June 2010 for the employees to approve the agreement by voting for it satisfied s.181(2). That sub-section requires that the employer’s request must not be made until at least 21 days after the day on which the last employee representational rights notice is given.

[7] On the employee’s information to Fair Work Australia the employees were first requested to approve the agreement by voting for it on 24 June 2010. The employer advised that the last employee representative rights notice was provided on 10 June 2010. As these dates are not consistent with s.181(2) I have, as indicated in the preceding paragraph, concluded that the mandatory pre-approval steps set out in subdivision A of Division 4 of Part 2.4 of the Act have not been satisfied.

[8] I am also conscious that without compliance with s.181(2) Fair Work Australia cannot be satisfied that the employees have generally agreed to the agreement in the sense of s.188(a)(i) and (ii).

[9] For these reasons the application cannot succeed. I decline to approve the agreement.

COMMISSIONER

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