Down Under Control Pty Ltd

[2018] FWC 6723

[2018] FWC 6723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Down Under Control Pty Ltd
(AG2018/3689)

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 OCTOBER 2018

Application for approval of the Down Under Control Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Down Under Control Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Down Under Control Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] During bargaining for the Agreement, a copy of the Notice of Employee Representational Rights (NERR) was distributed to employees. The NERR distributed to employees states that the Agreement was “proposed to cover employees that 31^st January 2020”. The NERR did not contain any other information indicating the proposed coverage of the Agreement.

[3] The Commission wrote to the Applicant, advising that the NERR distributed to employees did not appear to specify the proposed coverage of the Agreement as required by Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations). As a result, the NERR did not comply with the requirements of the Act and appeared to be invalid. The Commission further advised that if no valid NERR had been given to employees during bargaining for the Agreement, the Agreement could not be approved. The Commission asked that the Applicant provide a response by 16 August 2018.

[4] The Applicant emailed the Commission on 15 August 2018 seeking assistance. Commission staff spoke with Ms Gemma Stanton of the Applicant via telephone on 22 August 2018 and advised that the Applicant could proceed by making submissions to the Commission if it wished to continue with its current application. Staff also advised that the Applicant could withdraw the application if it did not wish to continue. Ms Stanton indicated that the Applicant did not intend to make submissions, but did not specify that it wished to withdraw its application.

[5] On 6 September 2018, the Commission again wrote to the Applicant asking that the Applicant advise the Commission on how it wished to proceed by close of business, 11 September 2018. The Applicant responded via email on 16 September 2018, but did not advise how it wished to proceed with its application. No further response was received from the Applicant.

[6] On 15 October 2018, the Commission wrote to the Applicant again, asking that the Applicant advise the Commission by noon, 18 October 2018 if it wished to withdraw its application or to take other action in relation to the application. The Commission advised the Applicant that if no response was received by this time, the application to approve the Agreement may be dismissed. The Commission has to date received no response to this correspondence.

[7] Based on the materials submitted to the Commission to date, the NERR distributed to employees during bargaining for the Agreement failed to advise employees of the proposed coverage of the Agreement, contrary to the requirements of Schedule 2.1 of the Regulations. In line with decisions of the Full Bench of the Commission in Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers 1and The Maritime Union of Australia v MMA Offshore Logistics Pty Ltd t/a MMA Offshore Logistics and Others2, the NERR distributed to employees during bargaining for the Agreement does not meet the requirements of s 174(1A) of the Act. As a result, I am of the view that the Agreement cannot be approved. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR701918>

 1   [2015] FWCFB 3337.

 2   [2017] FWCFB 660.