Construction, Forestry, Mining and Energy Union

[2014] FWC 7285

[2014] FWC 7285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/7450)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 16 OCTOBER 2014

Application for approval of the WRD Interiors Pty Ltd and CFMEU union collective agreement 2014-2018 - application dismissed.

[1] On 9 September 2014, an application for approval of a single enterprise agreement was made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”). The agreement was referred to as the WRD Interiors Pty Ltd and CFMEU union collective agreement 2014-2018 (“the Agreement”).

[2] The application for approval was deficient in respect of the requirements of s.181 of the Fair Work Act 2009 (“the Act”).

[3] Section 181 of the Act provides 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] On 25 September 2014, I corresponded with the Applicant and the employer in the following terms:

“At the outset I note a threshold issue in relation to this application.

Requirements of s.188 of the FW Act

For your ease of reference, s.188 of the Fair Work Act 2009 (“FW Act”) states:

“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.” (my emphasis)

Based on the responses provided at 2.8 of the Employer’s completed Form F17, it appears that 21 days had not elapsed between the employer providing the s.173(1) Notice and when the employer requested the employees to approve the Agreement, as the dates suggest that voting commenced on the same day (1 August 2014) the last notice of employee representation rights was provided to an employee. It is noted that the response states that voting concluded on 28 August 2014.

Please advise if the Form F17 contains a typographical error or reflects a misunderstanding. In the event that the above issue results from an error only, the employer will be required to file an amended Form F17 and your application will be subject to a more comprehensive review against the requirements of the FW Act. Please advise by COB on 30 September 2014.

In the event that Form F17 accurately reflects the sequence of events, the Commission cannot be satisfied that the Agreement has been genuinely agreed to by the employees and the Applicant will be required to withdraw the current application and file a fresh application in accordance with the requirements of the FW Act.

[...]”

[5] As no response was received to the above correspondence, I wrote again to the Applicant and the employer on 3 October 2014:

“I refer to the above matter and below email sent on 25 September 2014.

If the employer wishes to clarify the dates by providing an amended F17 declaration, this should be provided to the Commission as soon as possible and by COB on Wednesday 8 October 2014.

If no response is received by that time, the application will be considered on the basis of the material on the file, and will be dismissed (for the reasons outline below).

[...]”

[6] No response was received by the stated time, nor to the date of this decision.

[7] Because the deficiency as highlighted cannot be corrected by any retrospective action or by way of an undertaking pursuant to s.190 of the Act, the application for approval of the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

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