Earth Civil Contracting Pty Ltd

[2016] FWC 2755

[2016] FWC 2755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Earth Civil Contracting Pty Ltd
(AG2016/2467)

COMMISSIONER LEE MELBOURNE, 3 MAY 2016

Application for approval of the Earth Civil Contracting Pty Ltd Plant Operations Collective Agreement 2012.

[1] On 29 February 2016, Earth Civil Contracting Pty Ltd (the Applicant) applied to the Fair Work Commission (the Commission) under section 185 of the Fair Work Act 2009 (the Act) for the approval of the Earth Civil Contracting Pty Ltd Plant Operators Collective Agreement 2012 (the Agreement).

[2] I had a number of concerns about the pre-approval process for the Agreement. In particular, I was concerned that there was insufficient information contained in the Form 17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form 17), to satisfy me that the Applicant had complied with s. 173, s.180(2)(a), s.180(3) and s. 185(3)(b) of the Act. I also had concerns about compliance with the Fair Work Regulations 2009 and some minor administrative issues.

[3] Further, and in particular, I had significant concerns about whether the Applicant had complied with s.181 of the Act. Correspondence was sent to the Applicant on 30 March 2016 setting out all of my concerns. The Applicant did not provide a response to this correspondence.

[4] Follow up correspondence was sent to the Applicant on 6 April 2016 and 11 April 2016. On 12 April 2016, the Applicant responded to this correspondence in the following terms:

“Hi,

I will have a new set of paperwork to you shortly, we have re-notified and will have a re-vote as the paperwork all seemed to have become crossed over with a previous agreement.

Sorry for the confusion.”

[5] Following receipt of this correspondence the Commission sent an email to the Applicant advising that if they wished to pursue a different application, that they were required to formally withdraw the current application by completing and returning a Form 50 – Notice of Discontinuance and would be required to start the process again by re-issuing the Notice of Employee Representational Rights (NERR). The Applicant did not provide a response to this correspondence.

[6] Follow up correspondence was sent to the Applicant on 15 April 2016, 20 April 2016 and 26 April 2016 advising that if a response was not provided the Commissioner may dismiss the application.

[7] No further correspondence was received from the Applicant.

[8] Section 181 of the Act provides as follows:

“181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[9] Based on the information contained in the Form 17, voting on the Agreement by employees occurred on 25 January 2016 which is the same date the last NERR was given to employees. In other words, voting on the Agreement commenced before “at least 21 days after” the last NERR was given to employees as required bys.181(2) of the Act.

[10] It follows that I cannot be satisfied that the Agreement has been genuinely agreed to as I am not satisfied the Applicant complied with the provisions of s.181(2) of the Act. As I am not satisfied that the Agreement has been genuinely agreed to, I cannot be satisfied the requirement in s.186(2)(a) of the Act has been met. I therefore cannot approve the Agreement and the application is dismissed.

[11] I note that I had a number of other matters of concern about the Agreement. However, having dismissed the application for the above reasons, it is not necessary to deal with these other matters.

COMMISSIONER

<Price code A, PR579911>