Hallmate Pty Ltd as Trust for the T & A Hartman Family Trust T/A Bowland Port Pirie
[2010] FWA 3136
•19 APRIL 2010
[2010] FWA 3136 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/6973)
COMMISSIONER CAMBRIDGE | SYDNEY, 19 APRIL 2010 |
Application for approval of the Bowland Port Pirie Enterprise Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Bowland Port Pirie Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hallmate Pty Ltd as Trust [sic] for the T & A Hartman Family Trust T/A Bowland Port Pirie (the Employer). The agreement is a single-enterprise agreement.
[2] The application was lodged at Adelaide on 15 March 2010. The application included a Statutory Declaration of Anthony David Hartman, made on behalf of the Employer and dated 12 March 2010, (the Declaration). The Declaration stated that the Agreement was made on 4 March 2010, thereby satisfying 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 Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[4] As can be seen from subsection 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.
[5] In this instance, the Declaration stated that the date on which the last notice of representational rights was provided was 3 March 2010. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 4 March 2010.
[6] Unfortunately therefore the Agreement does not comply with the requirements of subsection 181 (2) of the Act.
[7] Further, an examination of the Declaration discloses various unfortunate inaccuracies such that it does not represent a document that has been prepared with sufficient care so that it could be relied upon for present purposes. As an example, in point 2.3 of the Declaration regarding subsection 180 (2) (a) of the Act and the requirement to give a copy of the text of the Agreement to employees during the access period starting 7 days before the voting process commences, the Declaration states:
“Copy of the agreement issued to all employees by the 19th March 2010”
[8] Further, it should be noted that the relevant reference instrument for the better off overall test would be the Amusement, Events and Recreation Award 2010 [MA000080], rather than the AWU Tenpin Bowling Industry Award 2003 as stated at point 3.1 of the Declaration.
[9] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application must be dismissed.
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