Bowland Cranbourne Pty Ltd
[2010] FWA 778
•23 FEBRUARY 2010
[2010] FWA 778 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/24284)
COMMISSIONER LEWIN | MELBOURNE, 23 FEBRUARY 2010 |
Bowland Cranbourne Enterprise Agreement.
[1] On 23 December 2009, Bowland Cranbourne Pty Ltd lodged an application in Fair Work Australia for the approval of the Bowland Cranbourne Enterprise Agreement (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). An employer’s declaration in support of the application was provided with the application.
[2] Section 185 of the Fair Work Act 2009 sets out the provisions that bargaining representatives must follow in making applications to Fair Work Australia, and is set out below:
“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.”
[3] I refer in particular to s.185(3)(a) that states that an application must be made “within 14 days after the Agreement is made” (emphasis added). On the Form 17—Employer’s Declaration in Support of Application for Approval of Enterprise Agreement, which was received in Fair Work Australia on 23 December 2009 the employer declared at Question 2.1 that the agreement was made on 24 December 2009. As the Application for approval of the Agreement was lodge in Fair Work Australia 1 day before the Agreement was made, the statutory provisions of s.185 clearly have not been met.
[4] The statutory requirement referred to above is mandatory. There is no discretion vested in Fair Work Australia to approve an agreement if those requirements have not been met. For this reason, the Agreement cannot be approved.
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