“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2011] FWA 2185

[2011] FWA 2185

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(AG2010/14955)

Manufacturing and associated industries
COMMISSIONER GAY	MELBOURNE, 8 APRIL 2011

Petromech Metal Engineering On-Site Construction Agreement 2009-2011.

[1] On 14 October 2010 a s.185 application was lodged by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for approval of the Petromech Metal Engineering On-Site Construction Agreement 2009-2011 (the Agreement).

[2] The application per medium of Form F16 was signed by Mr G Robb the Assistant State Secretary of the AMWU and was accompanied by a Form F18 ‘Declaration in Support’ declared by Mr Robb on 7 October 2010, together with a Form F22 ‘Notice for Employee Organisation to be Covered by Enterprise Agreement’ also signed by Mr Robb on 7 October 2010. The application was lodged late. On the basis of the explanation proffered to Fair Work Australia by Ms Sullivan of the AMWU I am satisfied that time for lodgement should be extended. I extend the time for lodgement to 14 October 2010.

[3] Accompanying the AMWU material, which included a signed copy of the proposed Agreement, was a Form F17 the ‘Employer’s Declaration in Support of Application for Approval of Enterprise Agreement’. The Statutory Declaration made out by Robertr (sic) Gawn on 8 October 2010 contained answers to several questions which caused me to query whether the Agreement might properly be approved.

[4] Question 2.2 of the Form F17 was completed in the following way:

2.2 Please provide the following dates:

(a)	Date on which the last notice of representational rights under s.173(1) was given to an employee who will be covered by the agreement:	3rd September 2010
(b)	Date on which voting for the agreement commenced (voting commences on the first day that an employee is able to cast a vote - see s.181):	3rd September 2010
(c)	Date on which the agreement was made (that is, the date on which the voting process by which employees approved the agreement concluded - see s.182):	29th September 2010

[5] It will be seen that Mr Gawn’s Declaration gave the date that the last notice of s.173(1) representational rights was given to an employee (s.173(1)) as “3rd September 2010”.

[6] Mr Gawn’s Declaration gave the date in response to question 2.2(b), that date upon which voting commenced, as “3rd September 2010”. Mr Gawn’s response to question 2.2(c) as to the date upon which the agreement was made (that is, the date on which the voting process by which employees approved the agreement concluded) was “29th September 2010”.

[7] It will be recalled that s.181(2) provides that the request by an employer for employees to approve a proposed agreement “must not be made until at least 21 days after the day on which the last notice under subsection 173(1)... in relation to the agreement is given.” (See also s.188(a)(ii)).

[8] On the information declared by Mr Gawn, it can be seen that the date upon which voting commenced and the date on which the last representational notice was given were the same day ie. 3 September 2010. Noting that the answer given to question 2.2(c) was 29 September 2010, it was necessary to conclude that employee voting for the Agreement extended from 3 September 2010 until 29 September 2010 inclusive.

[9] The Agreement covered two employees at the relevant date. It seemed unlikely that voting for two employees would remain open for 27 days, particularly given that Mr Gawn’s Declaration at question 2.6 read in part, “Each employee received a copy of the proposed agreement. Employees were released from work to attend a mass meeting at their union office to discuss the terms of the agreement...”.

[10] Having considered these answers I contacted Mr Gawn on 20 October 2010. Mr Gawn advised that an error had been made with the dates given in response to question 2.2 of his Declaration. Mr Gawn indicated his intention to send a further Statutory Declaration which would establish that the requisite 21 days clear notice had been given before the Agreement was made.

[11] I indicated to Mr Gawn that if the proposed declaration was in order, in correcting the typographical error or his error in recording the dates of the relevant events for the purpose of the Declaration, and explicitly dealt with the mandatory time periods involved in making an agreement under the Fair Work Act 2009 (the Act), I would be likely to accept the declaration. No further Statutory Declaration was received.

[12] On 9 December 2010 my Associate wrote to Mr Gawn, with a copy to the officer at the AMWU Victorian office, Ms Sullivan, who the records indicated had filed the original application. The letter read:

“On 20 October 2010 Commissioner Gay spoke with you about the Form F17, question 2.2, in relation to the above agreement. It was the Commissioner’s understanding that you would respond to the issues raised by him in your conversation of 20 October 2010.

You are invited to communicate with the writer if it remains your desire for the agreement to be approved. Should that be the case it will be necessary for the issues raised by the Commissioner to be addressed.

Should there be no response to this communication, no further action will be taken in relation to the application.”

[13] As there has been no response from Petromech (or from the AMWU) and as I am of the view that it is undesirable for the application to remain on foot in circumstances such as exist on this occasion it is necessary to bring the application to a conclusion.

[14] As I cannot be satisfied that the employer’s request for the employees to approve the proposed agreement by voting for it was made at least 21 days after the day on which the last notice of employee representational rights was given I cannot conclude that the mandatory pre-approval steps set out in Subdivision A of Division 4 of Part 2.4 of the Act have been taken or have been met. Nor can I, for similar reasons, be satisfied that the employees can be said to have genuinely agreed to the Agreement in the sense of s.188(a)(i) and (ii).

[15] In light of these conclusions the approval described in s.186 cannot be given. I decline to approve the Agreement.

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