Hunter Water Corporation v Association of Professional Engineers, Scientists and Managers, Australia, The-New South Wales Branch (APESMA)
[2009] FWA 1154
•25 NOVEMBER 2009
[2009] FWA 1154 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
v
Association of Professional Engineers, Scientists and Managers, Australia, The-New South Wales Branch (APESMA)
(AG2009/14514)
VICE PRESIDENT LAWLER | MELBOURNE, 25 NOVEMBER 2009 |
Application for approval of the APESMA (Hunter Water Corporation) Agreement 2009.
[1] This is an application by Hunter Water Corporation (HWC) pursuant to s.185 of the Fair Work Act 2009 (FW Act) for approval of a single enterprise agreement known as the APESMA (Hunter Water Corporation) Agreement 2009 (Agreement).
[2] Section 173(1) of the FW Act imposes an obligation on an employer that will be covered by a proposed enterprise agreement to take all reasonable steps to give a notice of representational rights complying with the content requirements in s.174 of the FW Act to “each employee who will be covered by the agreement” and “who is employed at the notification time for the agreement” (which time is specified in s.173(2)). Section 181(2) of the FW Act requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights under s.173(1) has been given.
[3] Section 186(2)(a) of the FW Act makes it a jurisdictional prerequisite to approval of a collective agreement under the FW Act that such agreement had been “genuinely agreed to by the employees covered by the agreement”. Section 188 specifies the matters of which FWA must be satisfied in order for an agreement to have been “genuinely agreed to by the employees covered by the agreement”. One of the matters of which FWA must be satisfied is the matter specified in s.188(a)(ii), namely: that “the employer...complied with... 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).”
[4] It is accepted by HWC and, indeed, disclosed in HWC’s declaration in support of the application, that there was no notice of representational rights served on the employees as required by s.173(1) of the FW Act. This is an understandable oversight: negotiations for the Agreement started well before the commencement of the FW Act on 1 July 2009.
[5] FWA cannot be satisfied of the requirement in s.182(2) of the FW Act because no notice of representational rights was given in this case and therefore cannot be satisfied that the Agreement was genuinely agreed to by employees covered by the agreement within the meaning of s.188. Unfortunately, there is no discretion in FWA to waive the requirement in s.182(2) notwithstanding that there can be no doubt that the employees have genuinely approved the Agreement in the ordinary sense of that expression.
[6] FWA’s obligation in considering the present application is to comply with the requirements of the FW Act. For the reasons given I cannot be satisfied that the requirements of the FW Act have been met. The application for approval of the Agreement must be dismissed.
VICE PRESIDENT
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