Bronson Sheetmetal Fabrications Pty Ltd

[2014] FWC 7931

[2014] FWC 7931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bronson Sheetmetal Fabrications Pty Ltd
(AG2014/8051)

COMMISSIONER RYAN MELBOURNE, 7 NOVEMBER 2014

Application for approval of the Bronson Sheetmetal Fabrications Pty Ltd Collective Bargaining Workshop Agreement 2014-2017.

[1] An application for approval of the Bronson Sheetmetal Fabrications Pty Ltd Collective Bargaining Workshop Agreement 2014-2017 was filed with the Commission on 31 October 2014. The copy of the Agreement filed with the application was signed by a representative of the employer and by two employees on 31 October 2014.

[2] Sections 185(2) and (5) and Regulation 2.06A deal with the signature requirements for an enterprise agreement and the provisions are 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.

(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.”

“2.06A Bargaining representative must apply for FWC 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.”

[3] Although the copy of the Agreement in this matter has been signed, “the full name and address of each person who signs the agreement” has not been included.

[4] Non compliance with Regulation 2.06A cannot be waived.

[5] In the present matter the failure to comply with Regulation 2.06A means that the Commission does not have a valid application before it. The application must be dismissed.

[6] I note that there is no requirement that the persons who sign the Agreement must put a residential address. Compliance with Regulation 2.06A can be met by each person inserting their workplace address.

[7] To assist the parties I make a few observations about the contents of the Agreement.

[8] Clause 10 of the Agreement contains a consultation term which does not meet the requirements of s.205 of the Act. It would be appropriate for any new version of this Agreement to contain the Model Consultation Clause contained in Schedule 2.3 of the Regulations.

[9] Clause 17.1.5 provides that where industrial disputes cannot be resolved by the parties then, “either party to the dispute may refer to matter to the Fair Work Commission” (sic). Apart from the small wording error, the provision of clause 17.1.5 does not identify any power or function of the Commission in relation to the dispute. I note that the Model term for dealing with disputes for enterprise agreements set out in Schedule 6.1 of the Regulations contains the following:

“(5) The Fair Work Commission may deal with the dispute in 2 stages:

(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

Note : If Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.”

COMMISSIONER

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