Bohler Uddeholm (Australia) Pty Ltd

[2010] FWA 9480

[2010] FWA 9480

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Bohler Uddeholm (Australia) Pty Ltd
(AG2010/19775)

COMMISSIONER LEWIN MELBOURNE, 13 DECEMBER 2010

Bohler Uddeholm (Australia) Pty Ltd and National Union of Workers Enterprise Agreement 2010.

[1] An application has been made for approval of an enterprise agreement known as the Firefly Bohler Uddeholm (Australia) Pty Ltd and National Union of Workers Enterprise Agreement 2010 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bohler Uddeholm (Australia) Pty Ltd. The agreement is a single-enterprise agreement.

[2] Applications for approval of enterprise agreements must be lodged in Fair Work Australia within 14 days after the Agreement is made pursuant to s.185(3)(a) of the Act. The Agreement was made on 29 October 2010 and the application for approval of the Agreement was lodged in Fair Work Australia on 17 November 2010. The application is therefore 5 days out of time. Fair Work Australia has the discretion to extend that period pursuant to s.185(3)(b) of the Act, if in all the relevant circumstances, it considers such an extension fair.

[3] At question 2.3 of the Form 17—Employer’s Declaration in support of the application for approval of the enterprise agreement, the company did not provide circumstances for Fair Work Australia to consider in deciding if it is fair to extend the time for lodging the application. I have decided not to extend the time for the filing of this application because the Application for approval of the Agreement does not comply with other of the mandatory pre-approval procedures, which are discussed in detail below.

[4] Section 186 of the Act requires that in order to approve an enterprise agreement, (not a greenfields agreement), an agreement must have been genuinely agreed to by the relevant employees.

[5] Section 188 of the Act provides that for an enterprise agreement to be approved, Fair Work Australia must be satisfied that the agreement has been genuinely agreed to by the relevant employees, having regard to specific statutory requirements. The provisions of s.188(a)(ii) of the Act are set out below:

“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given);

…

[6] Section 181 of the Act is in the following terms:

“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.

[7] At question 2.2(b) of the Form 17—Employer’s Declaration in Support for Approval of Enterprise Agreement (the Declaration), filed in the Tribunal on 17 November 2009, the Company declared that employer first requested that the employees approve the agreement by voting for iton 29 October 2010.

[8] Section 173 of the Fair Work Act 2009 (the Act) requires that an employer who will be covered by a proposed enterprise agreement must take all reasonable steps to notify employees who will be covered by the agreement of the right to be represented by a bargaining agent as will be observed above, by force of s.181(2) of the Act, a request to vote cannot be effective for approval purposes where the vote occurs less than 21 days after the last notice of representational rights is given. At 2.2(a) of the declaration, the Company declared the date on which the last notice of representational rights under s.173(1) of the Act was given to employees was 18 October 2010. The Agreement was made on 29 October 2010, 11 days after than notice.

[9] On the material before me, I cannot be satisfied that the provisions of sections 188(1)(a)(ii), 181(2) and 185 of the Act have been met. The requirements of sections 188(1)(a)(ii), 181(2) are mandatory. There is no discretion vested in Fair Work Australia to approve an agreement if those requirements have not been met.

[10] For the reasons stated the Agreement cannot be approved.

COMMISSIONER

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