Colavon Pty Ltd Agreement 2010

[2010] FWA 5651

[2010] FWA 5651

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

Colavon Pty Ltd Agreement 2010
(AG2010/1521)

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 28 JULY 2010

Application for approval of the Colavon Pty Ltd Agreement 2010.

[1] An application has been made for approval of an enterprise agreement known as the Colavon Pty Ltd Agreement 2010 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Colavon Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 22 June 2010. The application included a Statutory Declaration of Ellen Thorman, made on behalf of the Employer and dated 21 June 2010, (the Declaration). The Declaration stated that the Agreement was made on 8 June 2010. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. Evidence of the procedural requirements has been provided by way of the prescribed Form F17, in this case the Declaration. 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.

[4] 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 and before any request to approve an agreement is made.

[5] In this instance, the Declaration, at point 2.2, stated that the date on which the last notice of representational rights was provided was “31.05.10”. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was “07.06.10”.

[6] Consequently the Agreement does not comply with the requirements of subsection 181 (2) of the Act.

[7] Further, at point 2.1 (a) of the Declaration the response given to the question; “Was a notice of representational rights complying with s.174 given to each employee who will be covered by the agreement in accordance with s.173? was “No”.

[8] In addition, at points 2.8 and 2.9 of the Declaration the following has been provided:

“2.8 Does the agreement cover all employees of the employer or employers?

[ ] Yes

[ x ] No

2.9 If the answer to question 2.8 is “No”, specify the group(s) of employees covered by the agreement and how FWA can be satisfied that such group(s) were fairly chosen, including by reference to the geographical, operational or organisational distinctness of such group(s): (s.186(3) and (3A))

They are new employees”

[9] Further, the Declaration did not provide any response in answer to questions 3.2 and 3.3. This absence of information would prohibit any valid comparison to be made between the Agreement and the reference instrument, the Road Transport (Long Distance Operations) Award 2010 (MA000039) (the Modern Award), particularly as clause 13 of the Modern Award contains 8 classifications and the Agreement at clause 7 states:

“7. EMPLOYEE CLASSIFICATION & WAGE RATE

Employees shall be paid a minimum of $23.00 per hour for each and every hour worked. This rate shall be paid for both ordinary hours worked and any additional hours worked.”

[10] It would be conceivable that the deficiencies identified with the application could have arisen from mistake or some inadvertent error. However it would be potentially problematic to contemplate allowing for correction or amendment, perhaps under section 586 of the Act, given that; (a) the relevant material has been provided in the form of a Statutory Declaration, and (b) the procedural requirements are contained in the Act, and not some subordinate instrument.

[11] Any proper process to possibly permit correction or amendment would likely require a Hearing involving careful examination and testing of evidence from the deponent of the Statutory Declaration as a witness in the proceedings. In a practical sense, particularly as many of the terms of the Agreement appear to operate so as to cause the Agreement to fail the better off overall test, it would be potentially more costly and inconvenient to the applicant employer to allow the application to proceed at all.

[12] A review of the deficiencies that have been identified in respect to the application documentation, and the Agreement content issues, has established manifest impediment to any approval of the Agreement. Any prospect that the identified deficiencies in the Agreement might be rectified by way of Undertakings made in accordance with subsection 190 (5) of the Act, would result in substantial changes to the Agreement and would thereby be invalidated by subsection 190 (3) (b) of the Act.

[13] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act. Further, the Agreement would need to be substantially altered before it would pass the better off overall test. Therefore the approval sought pursuant to s.185 of the Act is refused. Accordingly the application is dismissed.

COMMISSIONER

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