Baby Roco Pty Ltd T/A Baby Roco

[2019] FWC 7074

[2019] FWC 7074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Baby Roco Pty Ltd T/A Baby Roco
(AG2019/3003)

MQSR ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 OCTOBER 2019

Application for variation of the MQSR Enterprise Agreement 2014.

[1] An application has been made for approval of a variation to the MQSR Enterprise Agreement 2014 (the Agreement). The application was made pursuant to section 210 of the Fair Work Act 2009 (the Act) by Baby Roco Pty Ltd t/a Baby Roco (the Employer). The Agreement is a single enterprise agreement.

[2] The Employer filed a Form F23 Application for approval of variation of an enterprise agreement, where the Employer advised that the variation to the Agreement was in the form of a name change, from “Schnitz QV Pty Ltd” to “Baby Roco Pty Ltd”. The Employer did not initially file a Form F23A statutory declaration in support of the application to vary the Agreement.

[3] On the 30 August 2019, correspondence form the Commission was sent to the Applicant requesting the Form F23A statutory declaration and a copy of the signed variation pursuant to section 210(2) of the Act. No response was received from the Employer, and a follow up email was sent on the 13 September 2019.

[4] The Employer responded on the 13 September 2019, advising that the Employer does not have any new staff to vote on the variation of the Agreement. A further email was sent to the Employer on the 16 September 2019, advising that it does not appear that the variation Application complies with section 210 and section 211 of the Act, and therefore they may wish to make submissions or withdraw the Application.

[5] No response was received from the Employer, and a further follow up email was sent to the Employer. The Employer provided a Form F23A correctly witnessed on the 26 September 2019. The Employer states that no employees were affected by the variation as at present there are no employees engaged under the Agreement. The statutory declaration did not provide any relevant details on when the vote took place for the variation, how employees were informed of the voting information, and if any steps were taken to explain the variation to the employees.

[6] On the 1 October 2019, the Employer was contacted by the Commission advising that they may wish to withdraw the Application, or it may be dismissed, seeking a response from the Employer by close of business Friday, 4 October 2019. No response was received.

[7] On the 10 October 2019, the Employer was again contacted and advised by the Commission that if a response was not provided by close of business Thursday, 10 October 2019, the Application may be dismissed. No response was received.

[8] In the absence of a response to the matters raised by the Commission I turn to consider the application on the material before me

[9] Sections 210 and 211 of the Act set out the requirements for approval of a variation to an enterprise agreement. The relevant effect of s. 211 for the purposes of the present application is that the Commission must be satisfied that the pre-approval requirements of ss 180 and 188 are met, as if it were an application for approval of an enterprise agreement, in its consideration of the application to vary an enterprise agreement. Expressed more simply, the genuinely agreed requirements for a new enterprise agreement also apply in respect of an application to vary an enterprise agreement.

[10] Section 180 of the Act relevantly requires amongst other things, that in order for an enterprise agreement (read application to vary an enterprise agreement) to be approved, the Commission must be satisfied that employees were given copies of the agreement (s. 180(2)), that the Employer took all reasonable steps to notify the relevant employees by the start of the 7 day access period of the ballot details (s. 180(3)), and that the Employer took all reasonable steps to explain the agreement terms and the effect of those terms to employees (s. 180(5)).

[11] Based on the materials filed it is apparent that there were no employees engaged at the time of the application to vary the Agreement and no ballot was conducted. The agreement to vary cannot therefore have been made. Nor could the requirements of ss 180 and 188 of the Act have been met such as I could be satisfied that the variation to the Agreement was genuinely agreed.

[12] It follows therefore that the requirements of ss 210 and 211 have not been met and that the application to vary the Agreement must be dismissed and I so order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE412150  PR713294>