Ausmon Pty Ltd

[2023] FWC 2357

[2023] FWC 2357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ausmon Pty Ltd

(AG2023/2972)

DEPUTY PRESIDENT MASSON MELBOURNE, 14 SEPTEMBER 2023

Application for approval of the AUSMON PTY LTD ENTERPRISE AGREEMENT 2023-2026.

1. An application has been made for approval of the AUSMON PTY LTD ENTERPRISE AGREEMENT 2023-2026 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act) by Ausmon Pty Ltd. The Agreement is a single enterprise agreement.

1. Ausmon Pty Ltd (the Employer) filed its application with the Commission on 28 August 2023. Deficiencies in the material filed by the Employer led Commission staff to attempt to contact the Employer on 4 & 5 September without success. Following allocation of the matter to my Chambers on 5 September 2023, correspondence was sent to the Employer on 6 September 2023 raising several concerns including that the Agreement had not been signed and did not contain a nominal expiry date, commencement date, dispute settlement term, flexibility term, consultation term, rates of pay, penalty rates or other entitlements. Given the significant deficiencies in the material filed and the content of the Agreement, the Employer was invited to consider withdrawing the application and a response was sought from the Employer by the close of business on 8 September 2023.

1. The Employer did not provide a response by the close of business 8 September 2023. As such, my Chambers sent further correspondence to the Employer on 12 September 2023 advising that if a response was not received by close of business 13 September 2023, the application would be determined based on the material before the Commission. No response was received from the Employer.

1. In the absence of a response to the matters raised by the Commission I turn to consider the application on the material before me.

1. The Act sets out a number of statutory approval requirements for enterprise agreements. Relevantly, an application for approval of an enterprise agreement must be accompanied by a signed copy of the agreement[1] and any declarations that are required by the procedural rules to accompany the application[2]. Absent the provision of a signed agreement, the application cannot have been properly made. Furthermore, the absence of key entitlements in the Agreement means that I cannot be satisfied that the Agreement passes the better off overall test (BOOT)[3]. In these circumstances I am not satisfied that the requirements of ss 185(2)(a) and 186(2)(d) of the Act have been met. Given the BOOT concerns, it has been unnecessary for me to consider other potential deficiencies including whether the Agreement has been genuinely agreed. As set out above, unsuccessful attempts have been made by Commission staff and by my Chambers to engage the Employer in relation to the application. No response has been received from the Employer.

1. In the above circumstances the application for approval of the AUSMON PTY LTD ENTERPRISE AGREEMENT 2023-2026 has not been properly made and fails to meet other mandatory approval requirements and must therefore be dismissed. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] Section 185(2)(a)

[2] Section 185(2)(b)

[3] Section 193

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