Holmes Nominees (Aust) Pty Ltd
[2012] FWA 5823
•10 JULY 2012
[2012] FWA 5823 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Holmes Nominees (Aust) Pty Ltd
(AG2012/9466)
Cement and concrete products | |
COMMISSIONER RYAN | MELBOURNE, 10 JULY 2012 |
Holmes Nominees (Aust) Pty Ltd Australian Collective Workplace Agreement 2012 - 2015.
[1] This decision concerns an application for approval of an enterprise agreement known as the Holmes Nominees (Aust) Pty Ltd Australian Collective Workplace Agreement 2012 - 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Holmes Nominees (Aust) Pty Ltd (the applicant).
[2] An application for approval of an enterprise agreement of the same name was made on 8 June 2012 (AG2012/8785). The application was dismissed by the Tribunal on 13 June 2012 in decision [2012] FWA 5036.
[3] The present application was filed on 27 June 2012 and the agreement in the present matter has been varied from the terms of the agreement filed in AG2012/8785. The application in the present matter was accompanied by an Employer Declaration in Support of the Application (F17) which was declared by Mr John Holmes, Managing Director of the applicant.
[4] The critical defect in the original application was that the applicant had a committee of 6 employees vote to approve the agreement on behalf of the 115 employees who would be covered by the agreement.
[5] The statutory declaration of Mr Holmes in the present matter discloses that, on receipt of the decision of the Tribunal on 13 June 2012 which dismissed the first agreement, the applicant then arranged for employees to attend meetings on 15 June 2012 to vote on the second agreement.
[6] Material filed with the application shows that at the several meetings of employees held on 15 June 2012 the employees were advised that there was a new agreement and that they could ask questions about it and that they were to then vote on the agreement. The material filed with the application identifies that at each meeting the vote to approve the new agreement was unanimous.
[7] The F17 identifies that of 115 employees who would be covered by the agreement only 82 voted. No explanation was given as to why 33 employees did not vote and it is unclear from the material filed by the applicant as to whether the 33 employees were given an opportunity to vote.
[8] The critical defects in the process adopted by the applicant in relation to this second attempt to get an agreement approved by its employees are threefold.
[9] Firstly, once the applicant amended the agreement the access period under s.180 had to be met in relation to the new agreement and the applicant could not rely on the access period for the agreement in matter AG2012/8785.
[10] Secondly, the applicant was required by s.180(2) to:
“take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”
[11] Thirdly, the applicant was required by s.180(3) to:
“take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.”
[12] It would appear from the material filed with the application in this matter that the earliest date from which the access period could have commenced was the 14 June 2012. Which means that the earliest possible date for a vote of employees would have been the 22 June 2012.
[13] The requirements of s.180 have not been complied with by the applicant and the application must be dismissed.
Other observations on the content of the Agreement.
[14] I make the following brief observations on the content of the Agreement to assist the Applicant. These observations do not form part of the decision.
[15] In my earlier decision, [2012] FWA 5036 I made several observations about the content of the agreement. Some of those observations were acted upon by the applicant in creating the agreement in the present matter. However even where the applicant amended the previous agreement the amendments don’t always make sense and the resultant language of the agreement in the present matter appears to be so imprecise as to be meaningless.
I have carefully considered the contents of the current agreement and I still have concerns that the contents of the agreement in its present form would not meet the requirements of the Act. However I will not detail any of my current concerns with the agreement as filed in this matter. Should an application be made for approval of an enterprise agreement in which the requirements of s.180 have been met, then I will at that time consider the contents of the agreement.
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