Bilfinger Berger Services (Australia) Pty Ltd

[2010] FWA 6355

[2010] FWA 6355

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bilfinger Berger Services (Australia) Pty Ltd
(AG2010/1971)

COMMISSIONER RYAN MELBOURNE, 18 AUGUST 2010

Bilfinger Berger Services Australia Pty Ltd Altona Workshop Agreement 2009.

[1] On 17 August 2010 I issued a decision in relation to an application for approval of the Bilfinger Berger Services (Australia)) Pty Ltd Altona Workshop Agreement 2009 [2010] FWAA 6325 [PR500684].

[2] I now revoke that Decision.

[3] Section 603(3)(b) of the Fair Work Act 2009 (the Act) provides:

“(3) FWA must not vary or revoke any of the following decisions of FWA under this section:

(b) . . . a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);”

[4] It is beyond doubt that the Act prohibits the revocation of a decision which is a decision made under Division 4 of Part 2-4 of the Act. The issue in this matter is whether or not the decision I issued on 17 August 2010 is a decision under Division 4 of Part 2-4 of the Act.

[5] A decision under Division 4 of Part 2-4 of the Act is a decision to either approve or not approve an application for approval of an enterprise agreement. Section 186(1) provides that:

“If an application for approval of an enterprise agreement is made under s.185, FWA must approve the agreement under this section if the requirements set out in this section and s.187 are met.”

[6] Critically the process leading to the making of a decision under Division 4 of Part 2-4 can only occur if the conditions precedent established by s.185 are met. Only if an application is made under s.185 can Fair Work Australia make a decision to approve or not approve the enterprise agreement. Section 185 is as follows:

“185 bargaining representative must apply for FWA approval of an enterprise agreement

Application for approval

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

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.”

[7] With the exception of s.185(3)(b) all other requirements of s.185 are mandatory pre-conditions. Section 185(3)(b) provides a discretion to extend the time frame for the making of an agreement where Fair Work Australia considers it fair to extend that period.

[8] The application by Bilfinger Berger Services (Australia) Pty Ltd for approval of the Bilfinger Berger Services (Australia) Pty Ltd Altona Workshop Agreement 2009 does not comply with the mandatory requirements of s.185(2)(a). The application in this matter was accompanied by a copy of the agreement which was signed by the employer but not by a representative of employees. Section 185(5) identifies that the Regulations may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A of the Fair Work Regulations provides as follows:

“2.06A Bargaining representative must apply for FWA approval of an enterprise agreement — requirements for signing agreement

(1) For subsection 185 (5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185 (2) (a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note   Paragraph 185 (2) (a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”

[9] To meet the requirements of s.185(2)(a), an enterprise agreement must, in accordance with Regulation 2.06A(2), be signed by both the employer covered by the agreement and at least one representative of employees covered by the agreement. In the present matter the agreement has not been signed by at least one representative of the employees covered by the agreement. Therefore the requirements of s.185(2)(a) have not been met. There is therefore no valid application before the Tribunal.

[10] Fair Work Australia does not have the power to waive non-compliance with a mandatory pre-requisite condition for invoking the jurisdiction of Fair Work Australia. In this manner, non-compliance with s.185(2) means that for the purposes of s.186(1) there is no application before Fair Work Australia which has been made under s.185. Consequently, the purported decision issued by me on 17 August in this matter is not a decision which is founded on jurisdiction. It is not a decision made under Division 4 of Part 2-4 of the Act.

[11] In the absence of a valid application meeting the statutory requirements of s.185 there was no application validly before me and therefore no decision purporting to approve the agreement could be made under Division 4 of Part 2-4 of the Act.

[12] Having revoked the decision in PR500684, I now dismiss the application made by Bilfinger Services (Australia) Pty Ltd for approval of the Bilfinger Berger Services (Australia) Pty Ltd Altona Workshop Agreement 2009 on the basis that the application does not meet the requirements of s.185 of the Act.

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