Construction, Forestry, Mining and Energy Union

[2016] FWC 980

[2016] FWC 980

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/7083)

COMMISSIONER LEE MELBOURNE, 25 FEBRUARY 2016

Application for approval of the Brownfield’s Contracting Pty Ltd / CFMEU Collective Agreement 2015-2018 – application dismissed.

[1] The Construction, Forestry, Mining and Energy Union (the Applicant) made an application for approval of the Brownfield’s Contracting Pty Ltd / CFMEU Collective Agreement 2015-2018 (the Agreement) on 18 December 2015. The application was allocated to me for consideration.

[2] The application was the subject of a telephone hearing on 8 February 2016. The hearing was held as the application was not accompanied by a Form F17 – Employer’s Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement (Form F17) including the Notice of Employee Representational Rights (NERR) given to employees or a properly signed copy of the Agreement. Ms Charlson appeared on behalf of the Applicant and Mr Lombardi appeared on behalf of Brownfield’s Contracting Pty Ltd (the employer).

[3] At the conclusion of the hearing, I dismissed the application for approval of the Agreement. In doing so I stated that I was unable to approve the Agreement as the application was not accompanied by a properly signed copy of the Agreement, that is, the employer has not signed a copy of the Agreement.

[4] Section 186(1) of the Fair Work Act 2009 (the Act) provides as follows:

“(1) If an application for the approval of an enterprise agreement is made under subsection 182 (4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).”

[5] Section 185 deals with applications for approval of enterprise agreements. Relevantly it provides at s.185(2) that the application must be accompanied by a signed copy of the Agreement.

[6] Section 185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A(2) specifies what constitutes a signed Agreement for the purposes of s.185(2)(a). Regulation 2.06A is in the following terms:

“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.”

[7] Mr Lombardi submitted that he did not take any steps to provide employees with a NERR, he would not be signing a Form F17 and that he had not signed a copy of the Agreement. 1

[8] At the hearing Ms Charlson indicated that the Applicant wished to bring forward evidence that would attest to whether or not all the pre-approval requirements of the Act had been met. There was simply not utility in pursuing that course because the Agreement lodged was not signed by the employer covered by the Agreement. Ms Charlson indicated that the Applicant had been unable to provide a signed copy of the Agreement, as the employer had refused to sign the Agreement. 2

[9] The Applicant has not supplied a signed copy of the Agreement in accordance with s.185(5) and the associated regulation 2.06A, therefore, the application does not meet the requirements of s.185(2) of the Act. The employer in this matter has advised he has no intention of signing the Agreement. The Application is therefore not a valid application and cannot be approved. It follows that the Agreement does not meet the requirements for approval and I therefore cannot approve the Agreement pursuant to s.186 and s.187 of the Act.

[10] The application is therefore dismissed.

COMMISSIONER

Appearances:

L Charlson on behalf of the Construction, Forestry, Mining and Energy Union

F Lombardi on behalf of Brownfields Contracting Pty Ltd

Hearing details:

2016

Melbourne by Telephone

February 8

 1   PN45 - PN50

 2   PN31

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