David Truss

[2012] FWA 10889

[2012] FWA 10889

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.240—Bargaining dispute

David Truss
(B2012/2104)

COMMISSIONER BISSETT MELBOURNE, 28 DECEMBER 2012

Application to deal with a bargaining dispute.

[1] On 14 December 2012 Mr David Truss made an application pursuant to s.240 of the Fair Work Act 2009 (the Act) for Fair Work Australia (FWA) to deal with a bargaining dispute with respect to the FBIS International Protective Services (Aust) Collective Agreement 2012-2016 (the Agreement).

[2] On 18 December 2012 I wrote to Mr Truss in the following terms:

Section 240 of the Act states:

240 Application for FWA to deal with a bargaining dispute

(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for FWA to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute...

I note that you were a bargaining representative for the Agreement and therefore have standing to make the application.

You can see however that s.240(1) allows a bargaining representative to make an application only with respect to a proposed enterprise agreement.

The Agreement was made at the time the majority of employees who voted on the Agreement voted in favour of the Agreement. This was on 3 August 2012. The Agreement, having been made in August, is no longer a proposed agreement and therefore cannot be subject to an application under s.240 of the Act. Whilst this may appear a technical argument FWA can only operate in accordance with the provisions of the Act.

Your application can therefore not be dealt with and the alterations you seek to the Agreement cannot be made.

[3] Further I advised Mr Truss that I was considering dismissing his application and invited any submissions from him on this question to be provided by 21 December 2012.

Background

[4] An application for FWA to approve the Agreement was made on 16 August 2012. Mr Truss was a bargaining representative for the Agreement.

[5] The approval of the Agreement was subject to a number of hearings and substantial correspondence and analysis prior to the finalisation and giving of undertakings such that I was satisfied that the Agreement met the requirements of the Act and could be approved.

[6] On receipt of the undertakings, in accordance with s.190(4) of the Act, I sought the views of the bargaining representatives to the Agreement. Whilst I did receive some feedback on the proposed undertakings this did not ultimately affect the decision I made. This feedback went to decisions by the employer to utilise casual employees instead of offering shifts on overtime to existing employees.

[7] During the period between the making of the Agreement by employees voting to approve it and its approval by FWA Mr Truss raised with me a number of concerns with respect to the Security Services Industry Award 2010. I advised Mr Truss at the time that such matters could only be dealt with by way of an application to vary the award and not through the application to approve the Agreement.

[8] The issues raised by Mr Truss in the application under s.240 of the Act were not issues that had been raised as affecting the ability of FWA to be satisfied that, with the undertakings, the Agreement met the requirements of the Act.

[9] The Agreement was approved on 17 December 2012.

Conclusion

[10] The provisions of the Act are clear. Sections 173-183 go to those matters associated with bargaining for a proposed enterprise agreement. Such a proposed agreement is made when the majority of employees who cast a valid vote approve the agreement (s.182 of the Act).

[11] Once an agreement has been made it is no longer referred to as a proposed agreement (except to the extent that the Act refers to what may have occurred during the bargaining process) but rather as an agreement. Sections 185-193 set out the requirements necessary to have an agreement approved.

[12] The reference in s.240 of the Act to the right of a bargaining representative for a proposed enterprise agreement to make an application for FWA to deal with a dispute about the agreement must, logically, limit the time when such an application can be made to the time when the agreement is a proposed agreement and not to the time after the agreement has been made. To allow a bargaining representative to do otherwise may undermine the making of the agreement by employees voting to approve it. In any event it is clear that once a valid majority of employees has approved the agreement it is no longer a proposed agreement but is an agreement.

[13] Mr Truss has failed to respond to my invitation to make submissions as to why his application should not be dismissed.

[14] In accordance with s.587 of the Act I therefore dismiss the application on the grounds that it has no reasonable prospect of success.

COMMISSIONER

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