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

[2013] FWC 1669

[2013] FWC 1669

FAIR WORK COMMISSION

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)
(AG2013/597)

COMMISSIONER RYAN MELBOURNE, 18 MARCH 2013

Application for approval of the Dean McFarlane Welding Pty Ltd and AMWU Geelong Area Agreement 2011 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Dean McFarlane Welding Pty Ltd and AMWU Geelong Area Agreement 2011 - 2014 the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The agreement is a single-enterprise agreement.

[2] The application was accompanied with a Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement sworn by Mr Dean McFarlane, Manager of the employer in this matter. Mr McFarlane declared that there was only 1 employee to be covered by the Agreement and that the single employee voted to approve the Agreement on 12 February 2013.

[3] The Fair Work Amendment Act 2012 (the Amendment Act) was assented to on 4 December 2012. Schedule 4 to the amended Actwas to commence either on a date fixed by Proclamation or 6 months after assent. By Proclamation Schedule 4 commenced on 1 January 2013.

[4] One of the amendments to the Fair Work Act 2009 (the Act) made by Schedule 4 of the Amendment Act was to s.172 of the Act by the addition of a new sub-section (6) as follows:

Requirement that there be at least 2 employees

(6) An enterprise agreement cannot be made with a single employee.

[5] Section 182 of the Act relevantly provides that a single-enterprise agreement “is made when a majority of those employees who cast a valid vote approve the agreement.”

[6] In the present matter the Agreement was made on 12 February 2013 and was therefore subject to the operation of s.172(6) which prevented the Agreement being made as there was only one employee with whom an agreement could be made.

[7] As the Agreement could not be made for the purpose of s.182 of the Act there is therefore no valid application before me.

[8] I formally dismiss the application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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