Hi Rise Access Pty Ltd

[2014] FWC 2994

[2014] FWC 2994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hi Rise Access Pty Ltd
(AG2014/986)

COMMISSIONER RYAN MELBOURNE, 12 MAY 2014

Application for approval of the Hi Rise Access Pty Ltd Collective Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Hi Rise Access Pty Ltd Collective Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Hi Rise Access Pty Ltd.

[2] The application was accompanied by a Form F17, Employer’s Declaration in Support of Application for Approval of Enterprise Agreement sworn by Mr David Davis, Managing Director for the applicant. The Form F17 did not provide sufficient details to satisfy me that the applicant had complied with the requirements of the Act. I therefore caused my associate to raise this issue and a number of other concerns directly with the applicant via email, specifically requesting that the applicant file a new F17 with more fulsome responses to questions 2.3, 2.4 and 2.5.

[3] Mr Davis responded by email on 6 May 2014. The applicant did not to file an amended F17 but rather in answer to my request for more detail in response to questions 2.3, 2.4 and 2.5 of the F17 advised as follows:

“The answer to each of these questions is the same, a discussion was had with each employee discussing what was happening and why, what their rights were regarding having someone of their choice or a union represent them in any discussions about any conditions or terms in a new agreement. At that time, each employee was given the NOERR and a copy of the proposed agreement.

These discussions occurred over a period of less than a week in mid March.

On the 28^th April, each employee was contacted to seek their opinions, concerns and / or approval to proceed with the proposed agreement.

12 employees were contacted, 12 employees voted, and 12 employees accepted the agreement without any concern or change.”

[4] I note the advice above of Mr Davis that various steps took place “over a period of less than a week in mid March” is at odds with some of his responses in the F17.

[5] For the purpose of determining whether there has been compliance by the employer with the Act, I will take the combined information disclosed by the employer in the F17 and in its email dated 6 May 2014 into consideration.

Agreement-making process

[6] Section 180(1) provides that an employer cannot request employees to vote on an enterprise agreement until the employer has undertaken three actions, namely:

• giving a copy of the enterprise agreement and any material incorporated into the agreement to employees (s.180(2)(a)),



• providing access to a copy of the agreement and any material incorporated into the agreement for a defined period (s.180(2)(b)), and,



• notifying employees of the time and place of the vote and voting method that will be used (s.180)(3)).

[7] Each of these three actions has to occur within a set time. The requirement specified in s.180(2)(a) must occur sometime during the “access period”. The requirement specified in s.180(2)(b) must occur throughout the “access period”. The requirement specified in s.180(3) must occur before the start of the “access period”.

[8] The “access period” is defined in s.180(4) as being “the 7 day period ending immediately before the start of the voting process referred to in subsection 181(1).”

[9] It is evident that the employer complied with s.180(2)(a), however it is not clear whether employees were provided access to a copy of the agreement and any material incorporated into the agreement to employees throughout the access period.

[10] The employer has disclosed that employees were given a copy of the agreement in “mid March”.

[11] The employer has disclosed that employees were contacted individually on 28 April 2014 and each of them was asked if they had any concerns and in the same conversation asked for their vote on the proposed agreement.

[12] I therefore conclude that the employer has not given employees the requisite notice under the Act of the time and place of the vote.

[13] Therefore the employer could not have requested employees to vote on the Agreement as s.180(3) had not been complied with. As such there is no valid application before me.

[14] The application in this matter is therefore dismissed.

COMMISSIONER

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