ECS Solutions Pty Ltd

[2013] FWC 2299

[2013] FWC 2299

FAIR WORK COMMISSION

DECISION

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

ECS Solutions Pty Ltd
(AG2013/5700)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 APRIL 2013

Application for approval of the ECS Solutions Pty Ltd Rigger & Doggers Enterprise Agreement 2013 - dismissed.

[1] On 20 March 2013, an application for approval of a single enterprise agreement was made by ECS Solutions Pty Ltd (“the Applicant”). The agreement was referred to as the ECS Solutions Pty Ltd Rigger and Doggers Enterprise Agreement 2013 (“the Agreement”).

[2] The application for approval was deficient in respect of the requirements of s.174 of the Fair Work Act 2009 (“the Act”).

[3] Section 174 of the Act provides as follows:

174 Content and form of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

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.

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

[4] The Notice of Employee Representational Rights (“the Notice”) was deficient in relation to the prescribed content for purposes of subsection 174(1A) of the Act.

[5] The employer was made aware of the deficiency and has not challenged the observation by the Fair Work Commission (“the Commission”).

[6] It is understood that a new agreement making process will be instigated upon the decision by the Commission to not approve the Agreement.

[7] Because the deficiency 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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