Dak-Wal Constructions Pty Ltd

[2010] FWA 3696

[2010] FWA 3696

FAIR WORK AUSTRALIA

DECISION

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

Dak-Wal Constructions Pty Ltd
(AG2010/3760)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 11 MAY 2010

Application for approval of the Dak-Wal Constructions Pty Ltd & Employees 2009 – application refused.

[1] An application has been made for approval of an enterprise agreement known as the Dak-Wal Constructions Pty Ltd & Employees 2009 (the agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dak-Wal Constructions Pty Ltd (the applicant). The agreement is a single enterprise agreement.

[2] The agreement was made on 16 December 2009 and lodged in Fair Work Australia on 7 January 2010, more than 14 days beyond the period provided in s.185(3)(a) of the Act. However, the agreement was not made during the 14 days ending at the end of the bridging period, which would have prevented an extension of the 14 day period. 1 Form F17 as filed did not address circumstances which would support an extension of the period for lodgement under s.185(3)(b) of the Act. As a result, I wrote to the applicant on 10 February 2010 inviting them to provide a response to question 2.2 in Form F17. Such an explanation was provided on 17 February 2010.

[3] In my 10 February 2010 letter, I also sought a response to question 2.6 in Form F17 – the date upon which employees were asked to approve the agreement. The applicant’s letter of 17 February 2010 did not provide a response to this request.

[4] Also in my 10 February 2010 letter, I sought further information which was absent from Form F17 or was necessary to consider approval. Those matters were also responded to in the applicant’s 17 February 2010 letter, but not sufficiently for me to reach a view as to approval of the agreement.

[5] As a result, I wrote again to the applicant on 25 February 2010 seeking clarification of:

§ Rates provided, showing a comparison between the agreement and the reference instrument;

§ The effect of the agreement in relation to a range of allowances in the reference instrument;

§ The absence of minimum payments in respect of overtime in the agreement;

§ The effect of applying the NES redundancy provisions instead of the redundancy provisions in the reference instrument applying at the time of the making of the agreement;

§ The absence of minimum casual engagements in the agreement;

§ The absence of any payment in respect of inclement weather; and

§ The absence of a higher duties allowance, accident pay arrangements and annual leave loading in the agreement.

[6] My 25 February 2010 letter reiterated my 10 February 2010 request that a response be provided to question 2.6 in Form F17.

[7] No response was received to my 25 February 2010 letter by 19 April 2010. My Associate wrote to the applicant on that date seeking advice as to whether they wished to pursue their application and advising that if no response was received by 3 May 2010, I would refuse approval on the basis of the information available to me.

[8] No response to my 25 February 2010 letter or to my Associate’s 19 April 2010 letter has been received.

[9] On the basis of the information available to me, the requirement in s.181(2) of the Act that the “request (for approval) 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”,has not been met.

[10] Section 186(2)(a) of the Act provides that before approving an agreement, Fair Work Australia must be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement”.

[11] Section 188(a)(ii) of the Act provides that employees have genuinely agreed to an enterprise agreement if Fair Work Australia is satisfied that the employer covered by the agreement complied with subsection 181(2) of the Act in relation to the agreement (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).

[12] On the material before me, I cannot be satisfied that the employees genuinely approved the agreement and I cannot approve the agreement.

[13] Further, on the material before me, I am not satisfied that the agreement meets the no-disadvantage test (s.186(2)(d), as modified in relation to agreements made in the bridging period by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).

[14] In those circumstances, approval of the Dak-Wal Constructions Pty Ltd & Employees 2009 is refused.

SENIOR DEPUTY PRESIDENT

 1   Item 15 of Part 3 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

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