Bedroom Lounge Bar Pty Ltd and Rockbah Pty Ltd

[2013] FWC 5619

[2013] FWC 5619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185 - Application for approval of a single-enterprise agreement

Bedroom Lounge Bar Pty Ltd and Rockbah Pty Ltd
(AG2013/7649; AG2013/7661; AG2013/7662)

DEPUTY PRESIDENT SAMS SYDNEY, 21 AUGUST 2013

Application for approval of three enterprise agreements - insufficient notice given of representational rights - statutory time periods not met - agreement not made with employees - no discretion to waive notice period - applications dismissed.

[1] This decision deals with one application filed by Bedroom Lounge Bar Pty Ltd and two applications filed by Rockbah Pty Ltd (collectively, the ‘applicants’) pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’) seeking the approval of the Fair Work Commission (the ‘Commission’) of three single enterprise agreements known, respectively, as the Bedroom Lounge Bar Pty Ltd t/a “VanityNightclub”- Enterprise Agreement (the ‘Bedroom Lounge Agreement’), the Rockbah Pty Ltd t/a Sin City Nightclub-Security Employees-Employee Collective Agreement 2013-2017 (the ‘Security Agreement’) and the Rockbah Pty Ltd t/a “Sin City Nightclub”- Enterprise Agreement (the ‘Sin City Agreement’) (collectively, the ‘Agreements’). Because all three applications have issues which are fatal to the Agreements being approved by the Commission and the contact for each of the Agreements is the same person, I determined it to be appropriate to deal with all three applications together.

[2] In the Employer’s Declaration in support of the application (Form F17) for the Bedroom Lounge Agreement, Mr J Pickering, Director, said that the employees were last notified of their representational rights on, alternatively, 1-3 June 2013 or 2-12 June 2013 and that voting for the Agreement’s approval commenced on 12 June 2013. In the Form F17 for the Sin City Agreement, Mr S Geraghty, Director, said that the employees were last notified of their representational rights on, alternatively, 1-3 June 2013 or 2-12 June 2013 and that voting for the Agreement’s approval commenced on 12 June 2013. On either basis, there is not the statutory 21 day time period between the notice of representational rights and the vote for the approval of the Agreements. In the Form F17 for the Security Agreement, Mr S Geraghty, Director said that the employer currently employs no employees who will be covered by the Agreement. Obviously, no employees voted for the approval of the Agreement.

[3] For a valid application to be made pursuant to s 185 of the Act, it is a statutory prerequisite that an enterprise agreement be ‘made’ under s 185(1). That section is expressed as follows:

‘185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.’

[4] Section 182(1) sets out the circumstances in which a single-enterprise agreement is ‘made’:

‘182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.’

[5] Section 181 provides that the employer may request that employees approve a proposed enterprise agreement subject to certain conditions. It is expressed 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 [emphasis added].’

[6] Section 181(2) is expressed in mandatory terms. Accordingly, the request made by the applicants for its employees to approve two of the Agreements by way of a vote prior to the expiration of the statutory time period of 21 days, is not permissible. Additionally, s 182(1) sets out that an enterprise agreement can only be said to have been made when it is voted upon by a majority of the employees who cast a valid vote, vote to approve the agreement. It follows that the Agreements cannot be said to have been ‘made’ under s 182(1) and that the Commission has no jurisdiction to consider the applications under s 185. There is no discretion available to the Commission to waive the requirements of s 181(2) of the Act and the applications cannot proceed in their present form.

[7] Nevertheless, I listed the application for the Bedroom Lounge Agreement for hearing on 29 July 2013, as I had other concerns about the Agreement, particularly in respect to the Better Off Overall Test (BOOT) and whether the Agreement had been genuinely agreed to by the employees. Mr T Martin appeared for the applicant and confirmed that the F17 accurately reflected the process which the applicant had mistakenly undertaken. Accordingly, I advised Mr Martin that the application would be dismissed.

[8] Shortly thereafter, my Chambers received the applications for approval of the Security Agreement and the Sin City Agreement. On 8 August 2013, my Associate contacted Mr Martin, who confirmed that the respective Form F17s accurately reflected the process mistakenly undertaken by the applicants.

[9] Accordingly, pursuant to s 587(1)(a) of the Act, I order that applications AG2013/7649, AG2013/7661 and AG2013/7662 be dismissed.

DEPUTY PRESIDENT

<Price code A, PR540105>