Eventbiz Pty Ltd

[2014] FWC 2708

[2014] FWC 2708

FAIR WORK COMMISSION

DECISION

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

Eventbiz Pty Ltd
(AG2014/5668)

COMMISSIONER CAMBRIDGE SYDNEY, 24 APRIL 2014

Application for approval of the Your Event Solutions Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Your Event Solutions Enterprise Agreement 2014(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MST Lawyers acting on behalf of Eventbiz Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 11 April 2014. The application included a Statutory Declaration of Sam Whyte made on behalf of the Employer and dated 10 April 2014 (the Declaration). The Declaration stated that the Agreement was made on 2 April 2014. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. One of these procedural requirements is specified by s.174 of the Act which states 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.

Content of notice—bargaining representative if a low-paid authorisation is in operation

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”

[4] As can be seen from subsection 174 (1A), a notice of employee representational rights must, inter alia, contain the content prescribed by the regulations, not contain any other content, and be in the form prescribed by the regulations.

[5] Further, subsection 174 (3) stipulates that unless a low-paid authorisation is in operation, a notice of employee representational rights must explain that if an employee is a member of an employee organisation that is entitled to represent the industrial interests of that employee and the employee does not appoint another person as his or her bargaining representative, then the organisation will be the bargaining representative of the employee.

[6] In this instance, the Declaration stated at point 1.5, that a low paid authorisation had not been issued, and it included at Appendix 1, a copy of the notice of employee representational rights which did not contain the content prescribed by the regulations. In particular, the notice of employee representational rights omitted the following words contained in the relevant Schedule 2.1 of the Fair Work Regulations 2009:

“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”

[7] In this instance the deficiencies contained within the notice of employee representational rights are particularly surprising. There was an earlier related application for approval of a similar agreement (AG2013/11869) which was the subject of a Hearing before the Commission on 10 January this year. During this Hearing the Commission identified various concerns including deficiencies with the notice of employee representational rights. Subsequently, the application in that matter was discontinued. In passing, I note that some of the other concerns which were raised during the earlier Hearing regarding certain terms contained in the earlier agreement are included in the Agreement and have, in effect, not been rectified.

[8] Regrettably, the application for approval of the Agreement does not comply with the requirements of section 174 of the Act. The Act does not provide for the Commission to waiver or vary these provisions, they are mandatory.

[9] The application for approval of an enterprise agreement has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.

COMMISSIONER

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