EP Storage Pty Ltd

[2011] FWA 5943

[2011] FWA 5943

FAIR WORK AUSTRALIA

DECISION

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

EP Storage Pty Ltd
(AG2011/11606)

DEPUTY PRESIDENT BARTEL ADELAIDE, 31 AUGUST 2011

EP Storage 2011 Enterprise Agreement.

[1] An application for approval of an enterprise agreement known as the EP Storage 2011 Enterprise Agreement (the Agreement) has been made by EP Storage Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single-enterprise agreement.

[2] The Form F17 Employer’s Declaration indicates that no notice of representational rights was provided to the employees and this was confirmed by Ms Andrea Burnett, who represented the employer at the approval hearing. Section 173(1) of the Act provides that:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.”

[3] Section 181(2) of the Act requires that employees not be requested to approve a proposed enterprise agreement until at least 21 days after the day on which the last notice of representational rights was given to an employee who will be covered by the agreement. Section 186 of the Act specifies the general requirements for approval of an enterprise agreement and s.186(2) of the Act provides that Fair Work Australia (FWA) must be satisfied that the agreement has been genuinely agreed to by employees. In order for FWA to be satisfied that an agreement has been genuinely agreed to by the relevant employees, one of the requirements is that s.181(2) of the Act must have been complied with. 1

[4] There is no discretion to waive the requirement for a notice of representational rights to be issued, and the failure to issue the required notice means that the application for approval of the Agreement must fail.

[5] At the hearing of the application on 30 August 2011, the Tribunal took the opportunity to highlight a range of provisions in the Agreement which appeared to be inferior to the reference instrument, 2 provisions in the reference instrument excluded by the operation of the Agreement and provisions in the Agreement which were, in some respects at least, in contravention of the National Employment Standards (NES) for notice of termination and redundancy pay. While the Agreement also contained certain terms which were beneficial to the employees as compared with the reference instrument, these were of a relatively minor nature by comparison. Even if the procedural requirement of issuing a notice of representational rights had been complied with, the Agreement could not be approved on the basis that it did not result in the employees being better off overall as required by s.186(2)(d) of the Act. The extent of the provisions which were less beneficial to employees than the reference instrument and the NES could not be remedied by undertakings that met the requirement of s.190(3)(b) of the Act, that is, the extent and nature of the undertakings required to remedy the deficiencies would result in substantial changes to the Agreement.

[6] The application for approval of the Agreement is dismissed.

DEPUTY PRESIDENT

 1   Section 188(a)(ii) of the Act.

 2   The Storage Services and Wholesale Award 2010, MA000084

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