Boulus Constructions Pty Ltd

[2024] FWC 2164

[2024] FWC 2164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boulus Constructions Pty Ltd

(AG2024/2449)

DEPUTY PRESIDENT WRIGHT SYDNEY, 16 AUGUST 2024

Application for approval of the Boulus Constructions Enterprise Agreement Between Employer and Employees

1. Boulus Constructions Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Boulus Constructions Enterprise Agreement Between Employer and Employees (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Application was made on 2 July 2024 initially by way of two Form F16s, lodged by Brian John Boulus, Director/Project Manager and Joshua Earl Boulus, Site Manager. These were later replaced by a new Form F16 lodged by Natalie Herd, Finance Manager/HR Officer.

1. Clause 1 of the Agreement provides:

The parties to the agreement will be as follows:

·   Boulus Constructions as the employer, and

·   Brian John Boulus and Joshua Earl Boulus are Employee’s [sic] of Boulus Constructions.

1. Clause 2 of the Agreement provides:

This agreement will apply to Joshua Boulus & Brian Boulus as the employees of Boulus Constructions Pty Ltd, engaged in working for Boulus Constructions.

This will Include completing the following Trade Certificates: Certificate III in Carpentry and Certificate IV in Building & Constructions. [sic]

1. The Employer lodged a previous application on 3 June 2024 which was dismissed by Deputy President Masson on 21 June 2024 in matter AG2024/1951. The agreement which was the subject of that application appeared to cover only Joshua Boulus. The current application appears to cover only Brian Boulus and Joshua Boulus.

1. The Form F17B Employer’s declaration in support of an application for approval of a single-enterprise agreement (the Employer’s Declaration) states that that Agreement was made on 20 May 2024. It describes an Agreement making process pre-dating the lodgement of the previous application AG2024/1951. I have raised this matter with the Employer but have not received a satisfactory response. I therefore have concerns about the accuracy of the information about the Agreement making process in the Employer’s Declaration. On this basis I cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the Agreement.

1. In addition, the Agreement contains eleven classifications. The Employer has provided information which indicates that it has employees in only one of those classifications. On this basis, I am not satisfied that the employees who were requested to approve the Agreement have a sufficient interest in its terms, which is a requirement of s.188(2).

1. Further, the application for approval of the Agreement was not made within 14 days of the Agreement being made as required by s.185(3) and the Employer has not provided any reasons which would support a finding that it is fair to extend that period.

1. On 1 August 2024, my Chambers advised the Employer that I had formed a preliminary view that the Agreement cannot be approved. The Employer was invited to provide submissions in relation to the issues raised by Chambers by 5 August 2024. This period was extended until 9 August 2024 at the Employer’s request, but no submissions were received.

1. As the application has not been made in accordance with all of the requirements of s.185 and as I am not satisfied that the requirements in s.186(2) are met, I am not required to approve the agreement under s.186(1).

1. The Application is dismissed.

DEPUTY PRESIDENT

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