Electrical & Pumping Services Australia Pty Ltd

[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

Printed by authority of the Commonwealth Government Printer

Electrical & Pumping Services Australia Pty Ltd applied to the Federal Court for approval of the QCLNG Project Upstream Works Agreement. The application was dismissed due to a significant delay in its lodgement. The agreement in question related to the upstream works for the Queensland Curtis LNG project, a substantial energy infrastructure project. The dispute centred around the compliance with procedural requirements for such applications under the Australian Competition and Consumer Commission Act 2010. The primary legal issue for the court was whether the delay in the lodgement of the application constituted a sufficient ground to dismiss it under section 185(4) of the Act. The court had to consider whether the delay prejudiced any party and if the public interest in the approval process was adversely affected.

The court examined the timeline of events leading to the delay and the reasons provided by the applicant for the delay. It assessed whether the delay was unreasonable and whether it affected the ability of the ACCC to properly assess the application. The court found that the delay was significant and unreasonable, as it occurred despite the applicant being aware of the procedural requirements and the deadlines involved. The applicant did not provide adequate justification for the delay, and the court concluded that the delay had indeed prejudiced the ACCC's ability to conduct a thorough review. Consequently, the court ruled that the application should be dismissed, emphasising the importance of timely lodgement in such regulatory processes.

The Federal Court's decision underscored the significance of adherence to statutory timelines in regulatory applications. The dismissal of the application highlighted the consequences of failing to meet procedural requirements, particularly in matters involving significant public interest. The court's reasoning emphasised that any delay must be justified and cannot unduly prejudice the regulatory body's ability to perform its duties effectively. The final orders of the court were that the application for approval of the QCLNG Project Upstream Works Agreement was dismissed.

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