Direct Solutions (Australia) Pty Ltd T/A Engineering Directions

[2015] FWC 954

[2015] FWC 954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Direct Solutions (Australia) Pty Ltd T/A Engineering Directions
(AG2015/1746)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 9 FEBRUARY 2015

Application for approval of the Engineering Directions P/L Enterprise Bargaining Agreement 2014-2019.

[1] An application for approval of an enterprise agreement was filed by Direct Solutions (Australia) Pty Ltd Trading as Engineering Directions (the Applicant) on 28 January 2015.

[2] The application was listed for hearing on Friday 6 February 2015 and the Notice of Listing was sent to Mr David Moir, Company Director of the Applicant and to Mr Valters, a Bargaining Representative for employees. Neither the Applicant nor the Employee Bargaining Representative attended the hearing nor was any communication received from either of them advising of their non attendance at the hearing.

[3] The application in this matter will be considered on the basis of the materials as filed by the Applicant.

[4] I note that the current application follows a decision issued by the Commission on 15 December 2014, [2014] FWC 8993, in which the Commission dismissed an earlier application (AG2014/10723) by the Applicant for approval of an enterprise agreement covering the same group of employees as is covered by the current application.

[5] In the present matter the Applicant filed a F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement - which was sworn by Mr David Moir, Company Director for the Applicant.

[6] The F17 declares in answer to question 2.8 that the last Notice of Employee Representational Rights was issued on 26 January 2015 and that voting for the agreement commenced on 17 November 2014 and concluded on 26 January 2015. This information seems quite improbable.

[7] The F17 also declares in answer to question 2.4 that on 5 January 2015 that the Applicant took the action of “Giving notice of new bargaining agreement will be arranged”.
[8] If the Commission accepts the correctness of the answer to question 2.8 the Commission must refuse to approve the Agreement as there has been non compliance with s.181 and this in turn means that the Agreement has not been made under s.182.

[9] If the Commission accepts that the answer to question 2.8 is in error then it would appear that according to the answer to question 2.4 that the Notice of Employee Representational Rights was issued on 5 January 2015. Even if this were the case the application in this matter would still have to be dismissed because the Applicant has failed to meet the requirements of s.181 in that there has not been 21 clear days between the last Notice of Employee Representational Rights and the date of the vote. 1

[10] Further if the Commission accepts the truthfulness of the F17 in that the vote of employees took place on 26 January 2015 the Commission could not be satisfied, as required by s186(2)(a) that the agreement has been genuinely agreed to by the employees covered by the agreement. The F17 identifies that of the 20 employees who would be covered by the agreement 6 voted and those 6 voted to approve the agreement. There is nothing untoward in small numbers of employees voting in a vote for an enterprise agreement. However where a vote for an enterprise agreement is scheduled to take place on a public holiday a very real issue arises as to whether all employees were given an opportunity to vote for the agreement.

[11] In the present matter where the Applicant and Mr Moir and the Employee Bargaining Representative did not attend the hearing of this application the Commission cannot be satisfied that that the agreement has been genuinely agreed to by the employees covered by the agreement.

[12] The application in this matter is dismissed.

COMMISSIONER

 1   SDAEA v White’s Discounts P/L (2003) 128 IR 68 [15] - [16].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR560877>