Dunbrae Pty Ltd t/a Global Food Equipment - Employee Collective Agreement
[2009] FWA 73
•7 AUGUST 2009
[2009] FWA 73 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/10613)
Metal industry | |
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 7 AUGUST 2009 |
Application for approval of the Global Food Equipment Agreement.
[1] An application has been made for approval of an enterprise agreement known as Dubrae Pty Ltd trading as Global Foods Equipment - Employee Collective Agreement (the Agreement).
[2] The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and is thus subject to the approval requirements of Sub-division B, Division 4, Part 2-4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act during the bridging period.
[3] On the face of the materials filed, I was not satisfied that the employer provided a notice of employee representational rights as required by s.173 of the Act. As a result, the matter was brought on for hearing via video link on 5 August 2009, to seek clarification from the applicant on this point. In the hearing, the applicant’s representative conceded that, whilst some employees obtained representation, no notice of employee representational rights was provided to employees.
[4] In the absence of compliance with the requirements of s.173 of the Act, I am not satisfied that the agreement has been genuinely agreed to by employees to be covered by it (s.186(2)(a)). Genuine agreement (s.188) requires compliance with s.181(2) of the Act 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. In the absence of a notice of employee representational rights, s.181(2) has not been complied with.
[5] In my view, the requirement in s.173 of the Act, upon an employer to provide a notice of employee representational rights is a mandatory pre-requisite to the bargaining process and cannot be waived or rectified by an undertaking under s.190 of the Act. Absent compliance with s.173, the application is incompetent.
[6] I decline to approve the agreement.
SENIOR DEPUTY PRESIDENT
Appearances:
K. Downes and B. McKenzie for the applicant
Hearing details:
2009,
Melbourne (video hearing):
August 5.
1 Section 2, Part 1, Schedule 2. the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
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