Construction, Forestry, Mining and Energy Union

[2013] FWC 3143

[2013] FWC 3143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5948)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 23 MAY 2013

Application for approval of the Exactacut Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 - Approval refused.

[1] On 8 April 2013, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Exactacut Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] On the information provided with the application, in Form F17 at item 2.9, it was stated that only one person will be covered by the Agreement, only one person cast a vote and only one person voted to approve the Agreement.

[3] The Act was amended by the Fair Work Amendment Act 2012 (Amendment Act) which came into force on 1 January 2013. In schedule 4—Enterprise Agreements, of the Amendment Act a new requirement was introduced that there be at least two employees covered by an agreement and has been inserted into the Act at s.172(6) as follows:

“(6) An enterprise agreement cannot be made with a single employee.”

[4] On the information filed with the application, I was concerned that the requirement in s.172(6) of the Act, that the Agreement was made with a single employee had not been met and the Agreement cannot be approved. Accordingly on 11 April 2013, I wrote to the parties to the Agreement - the CFMEU and Exactacut Pty Ltd advising them of my concern and my view that the Agreement cannot be approved, affording them an opportunity to put submissions on the point, to correct any relevant information in the Form F17 (with supportive evidence as to the true facts) or to withdraw the application on the basis that a new agreement can be made if and when the employer employs more than one employee.

[5] On 2 May 2013, Exactacut Pty Ltd responded suggesting that the Agreement may be approved because it employs some casual employees who agree with the Agreement and the Agreement at that time covered one full-time employee and two casual employees.

[6] On 3 May 2013, I corresponded with the CFMEU and Exactacut Pty Ltd stating:

“The May email correspondence suggests that the agreement may be approved because it will, in fact, cover more than one employee since it would apply to one full-time employee and two casual employees.

The problem remains, however, that s.176(6) of the Fair Work Act 2009 (introduced with effect from 1 January 2013) provides that an enterprise agreement cannot be made with a single employee. An agreement is made when a majority of the employees of the employer that will be covered by the agreement who cast a valid vote approve the agreement (s.182(1)).

On the basis of the information in question 2.9 of the Form F17 filed with the application only one employee was to be covered by the agreement at the time it was made and it was only that single employee who was involved in the agreement making process and voting for approval of the agreement. Accordingly, whilst it is accepted that other employees may be covered by the agreement, at the time it was made, the agreement was made with a single employee and cannot be approved.

On the basis of the information before me, I intend to issue a decision refusing approval of the agreement for the reasons reflected in my 11 April 2013 correspondence and above.

Should you wish to put further argument on the issues above, I will list the matter for hearing at 10.30 a.m. on Friday, 17 May 2013 if requested.

Please advise if the hearing is required by noon on Wednesday, 15 May 2103. In the absence of a request for the hearing or advice that the application for approval is discontinued by that time, I will proceed to publish a decision refusing approval for the reasons indicated.

The making of a decision refusing approval, or the discontinuance of the application, does not prevent the making of a new agreement, with more than one employee when more than one employee is employed.”

[7] I have received no response to my correspondence of 3 May 2013.

[8] Accordingly, consistent with that correspondence and the reasons indicated above, I have decided that the Agreement cannot be approved in light of s.172(6) of the Act because it was made with a single employee.

[9] The application for approval of the Exactacut Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 is refused.

SENIOR DEPUTY PRESIDENT

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