Electrical & Pumping Services Australia Pty Ltd

[2013] FWC 4073

[2013] FWC 4073

FAIR WORK COMMISSION

DECISION

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

Electrical & Pumping Services Australia Pty Ltd
(AG2013/1369)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 24 JUNE 2013

Application for approval of the Electrical & Pumping Services Australia Pty Ltd QCLNG Project Upstream Works Agreement - application dismissed - delay in lodgement - s.185(4).

[1] On 3 June 2013, an application for approval of a greenfields agreement was made by Electrical & Pumping Services Australia Pty Ltd (“the Employer”). The agreement was referred to as the Electrical & Pumping Services Australia Pty Ltd QCLNG Project Upstream Works Agreement (“the Agreement”).

[2] The application for approval was deficient in respect of the requirements of s.185(4) of the Fair Work Act 2009 (“the Act”).

[3] Section 185 of the Act provides as follows:

185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

[...]

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made. (my emphasis)

[...]

[4] Regarding when a greenfields agreement is made, s.182 of the Act provides as follows:

182 When an enterprise agreement is made

[...]

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

[5] The Employer’s statutory declaration in support of the Agreement stated that the Agreement was made on 5 May 2013. The signature on the Agreement of the relevant official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) was dated 15 May 2013. The signature on the Agreement of the relevant representative of the Employer was undated.

[6] I corresponded with the Employer and requested that it clarify, by way of further statutory declaration, the date upon which the Agreement was made. The Employer provided a further statutory declaration confirming that the Agreement was made and signed by the Employer (and the CEPU) on 15 May 2013 (the 5 May 2013 date provided in the original Employer’s statutory declaration being an error).

[7] The Employer was made aware of the deficiency as it relates to s.185(4) and has not challenged the observation by the Fair Work Commission (“the Commission”).

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

[9] 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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