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

[2010] FWA 7116

[2010] FWA 7116

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)
(AG2010/8475)

COMMISSIONER RYAN MELBOURNE, 8 SEPTEMBER 2010

Eastwood INSULATION PTY LTD Metal Engineering On-site Construction Agreement 2009 - 2011.

[1] An application pursuant to s.185 of the Fair Work Act 2009 was made on 16 April 2010 by the Australian Manufacturing Workers’ Union (AMWU) for approval of a single-enterprise agreement titled Eastwood Insulation Pty Ltd Metal Engineering On-Site Construction Agreement 2009-2011.

[2] The application included a Form F17 Statutory Declaration of Anthony Blight, made on behalf of the Employer and dated 16 April 2010, (the Declaration). The Declaration stated that the Agreement was made on 9 April 2010, therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

[4] As can be seen from subsection 181(2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.

[5] In this instance, the Declaration stated that the date on which the last notice of representational rights was provided was 18 March 2010 and the that the date on which voting for the Agreement commenced was 18 March 2010, a period less than 21 days between the two events.

[6] Further, the Declaration was not properly witnessed by a person who is appropriately authorised to do so under the Statutory Declarations Act 1959.

[7] I noted also that the Form F17 used by the Applicant was the old form which had been replaced and was no longer the form available on the FWA website.

[8] The Applicant was notified of the deficiencies in the Declaration and provided with an opportunity to file an amended Form F17 using the new format F17 available on the FWA website in the event that the dates provided in the Declaration referred to above were provided in error.

[9] On 24 June 2010 the Applicant filed a new Form F17 Statutory Declaration made by Anthony Blight on behalf of the employer and dated 11 May 2010 (new Declaration).

[10] The new Declaration provided the same responses to the relevant questions about dates. The following responses were given to question 2.2:

“(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:	18th March 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):	18th March 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):	9th April 2010”

[11] On 24 June 2010 the Applicant was contacted by Fair Work Australia to ascertain whether the answers to question 2.2 in the Form F17 were correct. No response was received from the Applicant in relation to this matter.

[12] Therefore there is no valid application before me as the employer’s request for employees to approve the agreement was not made in compliance with s.181(2) of the Act. There is no discretion provided by the Act to FWA to alter or waiver the time period established by subsection 181 (2) of the Act. That time period is mandatory.

[13] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.

COMMISSIONER

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