CAM Shelving Contractors Pty Ltd T/A CAM Interiors

[2017] FWC 3992

[2017] FWC 3992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CAM Shelving Contractors Pty Ltd T/A CAM Interiors
(AG2017/1720)

COMMISSIONER LEE MELBOURNE, 8 AUGUST 2017

Application for approval of the Cam Interiors Collective Agreement 2016 – not approved.

[1] An application has been made for approval of an enterprise agreement known as the Cam Interiors Collective Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CAM Shelving Contractors Pty Ltd T/A CAM Interiors. The Agreement is a single-enterprise agreement.

[2] On 15 June 2017 the Fair Work Commission (the Commission) wrote to the Applicant outlining my preliminary concerns in relation to the application. On 12 July 2017 my chambers wrote to the Applicant’s representative as listed on the Form F16 – Application for approval of an enterprise agreement (Form F16), the Applicant was also included in this correspondence. The correspondence outlined my preliminary concerns in relation to application including the information provided in the Applicant’s Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17), specifically the pre-approval process for the Agreement.

[3] The Applicant did not provide a response to the correspondence dated 12 July 2017. On 26 July 2017 my chambers wrote to the Applicant advising that if a response was not provided by close of business Friday, 28 July 2017 the application would be determined on the materials currently filed and would be dismissed. No response was forthcoming.

[4] I have a number of concerns in relation to the pre-approval process for the Agreement. In particular, there is insufficient information contained in the Form F17 to satisfy me that the Applicant has complied with s.173, s.180 and s.181 (2) of the Act.

[5] In order for an enterprise agreement to be approved, the Commission needs to be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement (s.186(2)(a)).

[6] Section 186(2)(a) requires, in order for the Commission to approve an agreement that:

“The FWC must be satisfied that if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement.”

[7] Section 188 of the Act sets out the requirements for genuine agreement in the following terms:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC 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:

(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);

(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); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[8] Section 188(a) (i) requires the Commission to be satisfied that the employer complied with the provisions in s.180 (2), (3) and (5) of the Act. Section 180 (3) provides as follows:

“(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.”

[9] Section 188(a) (ii) requires the Commission to be satisfied that the employer complied with the provisions in s. 181(2). Section 181(2) provides as follows:

“181 Employers may request employees to approve a proposed enterprise agreement

(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.”

[10] Section 173(1) provides as follows:

“An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.”

[11] There is limited information provided in the Applicant’s Form F17 and there is inconsistency between the dates provided in response to different questions. The response provided at Q2.3 in the Form F17 indicates that the employer did not take all reasonable steps to provide employees with a Notice of Employee Representational Rights (NERR) pursuant s.173 (1). However, also states that “group email notification of the updated ECA and group staff meeting held on 16 Mayl [sic] 2017”. There are no dates provided at Q2.8 where the Applicant is required to provide the date of notification time and the date that the last NERR was provided to employees. The Applicant provides that the date voting for the Agreement commenced and the date that the Agreement was made was 12 May 2017. At Q.2.5 of the Form F17 the Applicant is asked to state the date of notification and describe the steps taken to notify employees of the matters dealt with in s.180(3) of the Act, being the time and place at which the vote will occur and the voting method that will be used. The Applicant’s response to this question is “staff meeting and vote taken 16 May 2017”.

[12] Based on the information provided in the Form F17 I cannot be satisfied that the Applicant has taken reasonable steps to distribute the NERR to each employee who will be covered by the Agreement as the Applicant’s response provided to this question is “no”. It follows that I also cannot be satisfied that the request to approve the Agreement by voting for, which the Applicant provides was on 12 May 2017, was not made until at least 21 days after the day on which the last notice under subsection 173(1) of the Act. Further, it is evident that the Applicant did not notify employees by the start of the access period for the Agreement of the matters dealt with in s.180(3) of the Act.

[13] Therefore, I cannot be satisfied that the Agreement has been genuinely agreed to as I am not satisfied the Applicant has complied with the provisions of s.173, s.181(2) and s.180(3) of the Act. As I am not satisfied that the Agreement has been genuinely agreed to, I cannot be satisfied the requirement in s.186(2)(a) of the Act has been met.

[14] For the above reasons I cannot approve the Agreement. The application is dismissed.

[15] Having dismissed the Agreement for these reasons, it is not necessary to deal with a number of other matters of concern I have in relation to the application.

COMMISSIONER

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