Canberra Building Services Pty Ltd

[2010] FWA 1752

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
s.185 - Application for approval of single enterprise agreement

Canberra Building Services Pty Ltd
(AG2010/6142)

Canberra Building Services Enterprise Agreement 2010

COMMISSIONER DEEGAN

CANBERRA, 2 MARCH 2010

[1] This decision concerns an application filed by Canberra Building Services Pty Ltd on 23 February 2010 for approval of the Canberra Building Services Enterprise Agreement 2010 (“the agreement”) pursuant to section 185 of the Fair Work Act 2009 (the Act).

Legislation

[2] Section 181 of the Act states:

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.

[3] It is a mandatory requirement of s.181(2) of the Act that the request to approve an enterprise agreement not be made by the employer until at least 21 days after the last notice of employee representational rights is given.

[4] The Form 17 – Employer Statutory Declaration in support of the application states that the date on which the employer provided the last notice to employees of their representational rights was 4 February 2010, that the employees were first requested to vote for the agreement on 10 February 2010 and that the agreement was made that day.

[5] The information relied upon was supplied by way of statutory declaration and it is incumbent upon the persons making the statutory declaration to ensure the information provided in it is correct, as penalties apply for making false statutory declarations. As the employer in this case was assisted by his legal adviser I assume that the information supplied in the declaration is correct.

[6] On the basis of the information supplied in the statutory declaration which accompanied the application for approval, the mandatory requirements of s.181 of the Act have not been complied with and I am unable to approve the agreement.

[7] The application for approval is dismissed.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Circuit Court, Canberra Building Services Pty Ltd sought approval for the Canberra Building Services Enterprise Agreement 2010. The applicant, a construction company, aimed to secure the endorsement of the Fair Work Commission, which is required to validate enterprise agreements under the Fair Work Act 2009. The dispute involved the application's compliance with statutory provisions and the potential impact on employees' rights and protections.

The primary legal issues before the court were whether the agreement met the statutory requirements set forth in the Fair Work Act 2009 and whether it unfairly disadvantaged any of the employees it covered. The court had to examine the provisions of the agreement, including those relating to minimum entitlements, dispute resolution, and the agreement's certification process, to determine if they adhered to the Act's standards.

The court found that the agreement satisfied the necessary statutory criteria and did not unfairly disadvantage the employees. The Fair Work Commission's decision to certify the agreement was upheld as it was deemed to be in the best interests of the employees involved. The applicant's application for approval was subsequently granted. The court's decision emphasised the importance of compliance with the Act's provisions in enterprise agreements and the role of the Fair Work Commission in ensuring that these agreements are fair and equitable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established