DM Civil Pty Ltd T/A Australian Civil Solutions

[2015] FWC 2659

[2015] FWC 2659

FAIR WORK COMMISSION

DECISION

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

DM Civil Pty Ltd T/A Australian Civil Solutions
(AG2015/2264)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 23 APRIL 2015

Application for approval of the Australian Civil Solutions 2015 EA - NOERR - single employee - application dismissed.

[1] On 27 March 2015, an application for approval of a single enterprise agreement was made by DM Civil Pty Ltd T/A Australian Civil Solutions (“the employer”). The agreement was referred to as the Australian Civil Solutions 2015 EA (“the Agreement”).

[2] On the basis of the information provided in the F17 declaration, it appeared that the application for approval may have been deficient in respect of the requirements of s.172(6) and s.174(1A) of the Fair Work Act 2009 (“the Act”).

[3] Section 172(6) of the Act provides as follows:

172 Making an enterprise agreement
...
Requirement that there be at least 2 employees

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

[4] Section 174(1A) of the Act provides:

174 Content and form of notice of employee representational rights
...
Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

[5] I directed email correspondence to the employer on 7 April 2015 in the following terms:

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

Copy of the Notice of Employee Representational Rights

Please provide a copy of the Notice of Employee Representational Rights that was provided to the employees ahead of the vote. Alternatively, did the letter to the employee dated 1 February serve as the formal notice?

Employees covered by the Agreement

The form F17 refers to the company’s “employee” (singular), whereas in response to question 2.10 the employer advises that 2 employees will be covered by, voted on and approved the Agreement. Can the employer please clarify how many employees will be covered by and voted on the Agreement?

Finally, page 11 of the form F17 was not scanned with the documents. Please provide a copy of page 11 as soon as possible.

Please provide the additional information discussed above as soon as possible and by COB on 9 April 2015.

Upon receipt of your responses to the above matters, I will advise whether I require any further information concerning this application, including regarding the assessment of the Agreement against the Better Off Overall Test.

[6] It should be noted that that letter dated 1 February 2015 did not conform with s.174(1A) of the Act.

[7] On 9 April 2015, the employer responded to this email, relevantly as below:

Copy of the notice of employee representation rights - Yes the letter I issued on February 1st was the formal notice.

Employees covered by the agreement - We only have 1 employee who will be covered by the agreement. I had included myself in the agreement as I receive a wage, but misunderstanding that as a director this doesn’t apply to me.

[8] On 10 April 2015, I directed the following correspondence to the employer:

From the information provided, it does not appear that the application is capable of being approved, because of the two issues set out below:

Notice of Employee Representational Rights

The Fair Work Act and associated Regulations provide a specific notice that must be provided – the notice cannot be amended or modified in any way. The Notice is set out at schedule 2.1 of the Fair Work Regulations. The letter you provided to your employee on 1 February does not include all the information required. There is a recent Commission Full Bench decision regarding this issue - Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.

Single employee covered by the agreement

Additionally, Senior Deputy President Richards advises that the Commission is expressly precluded under the Fair Work Act from approving an agreement made with one person:

172 Making an enterprise agreement
...
Requirement that there be at least 2 employees

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

On the basis of the above two issues, it appears that the application must be dismissed. If you wish to be heard or make submissions regarding these matters, please advise by COB on 16 April 2015.

[9] The employer has not advised that it wished to be heard or make submissions by the time of this decision.

[10] On the basis of the material on the file as outlined above, I am not satisfied that the application for approval complies with the requirements of s.172(6) or s.174(1A) of the Act.

[11] Because the deficiencies 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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