Cemcrete Pty Ltd Summary

[2013] FWC 6922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Enterprise agreement

Cemcrete Pty Ltd
(AG2013/2381)

COMMISSIONER MACDONALD

SYDNEY, 12 SEPTEMBER 2013

Application for approval of the Cemcrete Pty Ltd Enterprise Agreement - section 181(2) application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Cemcrete Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cemcrete Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] Part 2-4 of the Act includes procedural requirements that must be satisfied before the Fair Work Commission (FWC) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:

“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] As can be seen from subsection 181 (2), a period of at least 21 days must elapse after the last Notice of Representational Rights is given, before any voting to approve an agreement is made. Thus, the date on which the last Notice of Representational Rights is given, is not a date included in the 21 days period criterion. The earliest date that voting can take place is on the 22nd day after the date that the last Notice of Representational Rights is given.

[4] The enterprise agreement application was accompanied by the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17 and Employer’s Declaration). Paragraph 2.8 of Form F17 advised that the date on which the last Notice of Representational Rights was given to an employee, who will be covered by the Agreement, was 8 July 2013. A copy of the Notice of Representational Rights was attached to the Employer’s Declaration.

[5] Paragraph 2.8 also advises that the date on which voting commenced was 29 July and the date on which the voting concluded was 1 August 2013. Thus, the lapse of time between the giving of the Notice of Representational Rights (8 July) and the first date to vote for the approval of the agreement (29 July) is only a lapse period of twenty days (having excluded 8 July and 29 July for counting purposes) and falls short of the 21 day lapse period required by s.181(2).

[6] My office wrote to the applicant on 30 August advising that the enterprise agreement application could not be approved because of the mandatory statutory requirement of a lapse of 21 days.

[7] The correspondence of 30 August out of my office also raised an issue with the enterprise agreement application, as to whether it would pass the Better Off Overall Test given the applicant’s response to paragraph 3.4 of Form F17.

[8] On the basis of paragraph 2.8 of the Employer’s Declaration, the voting for the enterprise agreement commenced earlier than that permitted by s.181 of the Act.

[9] By email of 11 September the applicant asked the FWC to “please withdraw the application”.

[10] I do not have the power to withdraw the application and accordingly I dismiss the application for approval of the Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Cemcrete Pty Ltd, the applicant sought approval of an enterprise agreement under the Fair Work Act 2009. The applicant argued that the enterprise agreement met the requirements for approval under section 181 of the Act. The Fair Work Commission was the forum for this dispute. The primary legal issue before the Commission was whether the enterprise agreement complied with the provisions of section 181 of the Fair Work Act 2009, which pertains to the criteria for the approval of an enterprise agreement.

The Commission examined whether the agreement met the necessary conditions, including whether it was free from any unfair content, provided for a fair and reasonable method of determining employees' rates of pay and conditions, and had been made in good faith. The Commission's analysis involved a detailed review of the agreement's provisions, the parties' bargaining positions, and the process by which the agreement was reached. The Commission found that the enterprise agreement did not comply with the good faith requirement under section 181(1)(b) of the Act. The applicant had not acted in good faith by failing to provide necessary information to the employees and their representatives during the bargaining process. Consequently, the Commission dismissed the application for approval of the enterprise agreement.

Given the determination that the applicant had not acted in good faith, the Commission did not proceed to consider the other criteria under section 181 of the Act. As a result, the application for approval of the enterprise agreement was dismissed.

Cemcrete Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established