H. Rolf Engineering Services P/L

[2014] FWC 759

[2014] FWC 759

FAIR WORK COMMISSION

DECISION

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

H. Rolf Engineering Services P/L
(AG2013/12150)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 3 FEBRUARY 2014

Application for approval of the H. Rolf Engineering Services P/L Employee Collective Agreement - application dismissed.

[1] On 22 December 2103 H. Rolf Engineering Services P/L made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of the H. Rolf Engineering Services P/L Employee Collective Agreement (the Agreement).

[2] The agreement was made on 1 July 2013. Accordingly, the application was lodged around six months beyond the period prescribed in s.185(3)(a) of the Act.

[3] On 2 January 2014, I caused a document to be sent to H. Rolf Engineering Services P/L indicating that I was not inclined on the information provided in the application to extend the period for lodgement under s.185(3)(b) of the Act and raising, in any case, several concerns about approval of the Agreement and inviting a response and the provision of any further relevant information.

[4] H. Rolf Engineering Services P/L responded on 9 January 2014.

[5] On the same day, I responded advising that whilst the information provided advanced some basis for exercising a discretion to extend the period for lodgement, some basis for finding that employees would be better off overall under the Agreement (subject to closer consideration of the Agreement terms) and concerns expressed by me about the National Employment Standards could be met by an appropriate undertaking.

[6] My response also confirmed my earlier concerns in relation to a failure to provide employees with a written Notice of employee representational rights and suggests that the Agreement is not an Agreement between the employer and its employees (being an Agreement reached with prospective employees). I concluded that these two issues - the Notice of employee representational rights and the making of an Agreement - prevent the approval of the Agreement.

[7] I advised that having regard to the information in the application filed (and relevant forms) and the additional information provided by H. Rolf Engineering Services P/L, I intended to dismiss the application for the reasons indicated concerning the Notice of employee representational rights and the making of the Agreement and provided a further opportunity for H. Rolf Engineering Services P/L to either:

● withdraw its application; or

● request a hearing in relation to the application should it wish to put further argument or information to me in relation to the provisional view I have reached that I will dismiss the application for approval in AG2013/12150.

[8] A further written response was received from H. Rolf Engineering Services P/L on 17 January 2014, which indicated and provided evidence that the employees previously referred to as “prospective employees” were employed by it at the time of the making of the Agreement. The response conceded that no Notice of employee representational rights was provided to employees who would be covered by the Agreement, in a form compliant with the Act or the Fair Work Regulations 2009 and Schedule 2.1 of those Regulations.

[9] I responded on 17 January 2014, providing a final opportunity by 23 January 2014 (later extended to 24 January 2014) for H. Rolf Engineering Services P/L to either withdraw its application or request a hearing in relation to the application, indicating that in the absence of a response, I would publish a decision dismissing the application for approval of the Agreement.

[10] No response has been received from H. Rolf Engineering Services P/L. In those circumstances, I will dismiss the application for the reasons which follow.

[11] Section 173 of the Act requires:

“(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.”

[12] Section 174(1A) of the Act requires that 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.”

[13] The information before me confirms that no notice was given in the form required by s.174(1A) and, in that circumstance, the Agreement cannot be approved because I cannot be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement (s.186(2)(a)), as defined in s.188 of the Act - see s.188(a)(ii).

[14] In that circumstance there is no utility in extending the period for lodgement of the application for approval of the Agreement, pursuant to s.185(3)(b) of the Act.

[15] The application is dismissed.

SENIOR DEPUTY PRESIDENT

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