Elite Reofix Pty Ltd
[2022] FWC 460
| [2022] FWC 460 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Elite Reofix Pty Ltd
(AG2022/81)
elite reofix pty ltd and employees Enterprise Agreement
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 3 MARCH 2022 |
Application for approval of the Elite Reofix Pty Ltd and Employees Enterprise Agreement – application dismissed
On 7 January 2022, Elite Reofix Pty Ltd (Applicant) filed an application (Application) for the approval of the proposed Elite Reofix Pty Ltd and Employees Enterprise Agreement (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).
A list of concerns and issues with the Application, that the Commission’s Agreements Team had identified, and which I considered warranted response or clarification from the Applicant, were provided in writing to the Applicant. Further, given the substantive nature of such concerns and issues, as they concerned the approval of the Agreement, the matter was also listed for Mention/Directions before me.
The Applicant did not attend the Mention/Directions listing, nor did it advise the Commission prior to the listing of its inability to attend. When my Associate attempted to contact the relevant employee/officer of the Applicant shortly after the listing time, using the contact details provided by the Applicant in its Application, a Mr Mohammad Morad answered the phone. Mr Morad indicated to my Associate that he was not aware of the listing, nor of any correspondence received from the Commission regarding the Application. Mr Morad indicated that he had delegated tasks and responsibilities in respect of the Application to another employee of the Applicant (“Mr Taouk”), and that Mr Morad himself was unable to attend the listing in Mr Taouk’s place as he was currently working.
Further correspondence was then sent to the Applicant, which reads:
“Dear Mr Taouk/Mr Morad
Re: AG2022/81 - Application by Elite Reofix Pty Ltd
A Notice of Listing was issued on 14 February for a Mention/Directions before the Deputy President this morning at 11:00am AEDT. There was no attendance. When Chambers called the number provided with the Application, the Commission was told that the matter had been delegated to someone else in the business.
It is not the role of the Commission to be chasing down people to attend a listing before a Member of the Commission. The Application has been made by Elite Reofix and it is Elite Reofix’s responsibility to attend and progress their own Application. If the business cannot attend the Commission so as to respond to the serious concerns that have been raised over the Agreement and the Commission’s ability to approve the Agreement as filed, the only appropriate course is for the Application to be dismissed.
Notwithstanding the above, you are given 7 days to respond to the issues raised by the Commission with the Agreement by way of submissions, evidence, and undertakings. Failure to respond with appropriate submissions, evidence, or undertakings by 4:00pm AEDT Friday, 25 February 2022 will result in the immediate dismissal of the Application without further notice to you.
If you are unclear of anything in the email above, of the issues raised by the Commission, or of the appropriate response required, you are advised to get legal advice. Enterprise Agreements are not simply ‘rubber stamped’ by the Commission upon application for approval.”
The Applicant did not comply with the directions as issued above, and has in fact failed to correspond with the Commission at all since lodging its Application.
In view of the circumstances set out in this decision, most notably the Applicant’s failure to engage or communicate with the Commission in respect of its Application, and having regard to the various deficiencies apparent in the documents filed with the Commission (concerning pre-approval steps, genuine agreement, and the better off overall test), I am not satisfied that Agreement is one that is capable of approval under Part 2-4 of the Act. I dismiss the Application. An Order to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
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