Hire Services Pty Ltd
[2013] FWC 3741
•12 JUNE 2013
[2013] FWC 3741 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Hire Services Pty Ltd
(AG2013/6799)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 12 JUNE 2013 |
Application for approval of the Hire Services Pty Ltd Werribee Salt Reduction Plant (Tank Fabrication Project) Employee Collective Agreement for Casual Site Workers 2012-2013.
[1] On 29 May 2013 Hire Services Pty Ltd (the Applicant) lodged an application for approval of the Hire Services Pty Ltd Werribee Salt Reduction Plant (Tank Fabrication Project) Employee Collective Agreement for Casual Site Workers 2012-2013 (the Agreement).
[2] In the employer declaration filed with the application, the Applicant stated that the last notice of representational rights was given to employees on 1 May 2013 and voting commenced on 22 May 2013.
[3] Section 181 of the Fair Work Act 2009 (the FW Act) provides 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] Section 188 of the Act provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[5] I refer to the decision of Commissioner Whelan in Nepero Pty Ltd t/a Morgan’s Super IGA [2009] FWA 1712 in which she said:
“[11] Section 181 provides that an employer may request the employees to approve the agreement by voting for it. Section 181(2) provides that the request ‘must not be made until at least 21 days after the day on which the last notice under section 173(1)’ was given.
[12] In Alphington Aged Care and Sisters of St Joseph Health Care Services (Vic) t/as Mary Mackillop Aged Care 2, the notice was given on 6 July 2009 and the vote was taken on 27 July 2009. In determining that the application failed to meet the requirements of section 181(2), I referred to a decision of a Full Bench of the Australian Industrial Relations Commission in Re: White’s Discounts Pty Ltd t/as Everybody’s IGA Everyday and Broken Hill Foodland.3
[13] While that case dealt with the application of section 170LK(2) which required that employees were to have ‘at least 14 days notice’, in writing, of an employer’s intention to make an agreement, the principles to be applied are the same. The Full Bench held that the provisions of section 36(1) of the Acts Interpretation Act applied, and as the vote in that case was taken on the 14th day, the requirements of the relevant legislation were not met. Section 36(1) states:
‘Where in an Act any period of time, dating from a given day, act, or event is prescribed or allowed for any purpose, the time shall, unless the contrary appears to be reckoned exclusive of such day or such act or event’.
[14] A vote taken on the 21st day after the day on which the notice under section 173(1) was given, does not meet the requirements of section 181(2).”
[6] On 11 June 2013 I advised the Applicant that as the voting commenced earlier than permitted by section 181 of the FW Act, the Agreement could not be approved. The Applicant advised while voting commenced on 22 May 2013, it was not concluded on that day. However, the relevant date for the purpose of section 181(2) is the date voting commences, not the date when voting concludes.
[7] On the basis of the statutory declaration filed with this application, the voting commenced earlier than permitted by section 181 of the FW Act.
[8] I therefore dismiss the application for approval of the Agreement.
DEPUTY PRESIDENT
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