J&M Sinclair Pty Ltd

[2015] FWC 1021

[2015] FWC 1021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

J&M Sinclair Pty Ltd
(AG2015/183)

DEPUTY PRESIDENT SAMS SYDNEY, 20 FEBRUARY 2015

Application for approval of the J&M Sinclair Pty Ltd Enterprise Agreement 2015 - invalid application - application dismissed.

[1] This is an application, filed by J&M Sinclair Pty Ltd (the ‘applicant’), pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), seeking the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement known as the J&M Sinclair Pty Ltd Enterprise Agreement 2015.

[2] In the Form F17 Employer’s Declaration, Mr M Sinclair, Director, stated that the employees had last been provided with a Notice of Employee Representational Rights (NoERR), on 5 January 2015. The commencement of the vote for the Agreement’s approval was 20 January 2015. In a hearing before the Commission, Mr P Houlihan of First IR Consultancy Pty Ltd confirmed that these dates were correct. This means that there is not the mandatory statutory 21 day time period between the last issue of the NoERR and the commencement of the vote for approval of the Agreement.

[3] For a valid application to be made pursuant to s 185 of the Act, it is a statutory prerequisite that an enterprise agreement be ‘made’ under s 185(1). That section is expressed as follows:

‘185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.’

[4] Section 182(1) sets out the circumstances in which a single-enterprise agreement is ‘made’:

‘182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.’

[5] Section 181 provides that the employer may request that employees approve a proposed enterprise agreement subject to certain conditions. It is expressed 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 [emphasis added].’

[6] Section 181(2) is expressed in mandatory terms. Accordingly, the request made by the applicant for its employees to approve the Agreement by way of a vote prior to the expiration of the statutory time period of 21 days, is not permissible. Additionally, s 182(1) sets out that an enterprise agreement can only be said to have been made when it is voted upon by a majority of the employees who cast a valid vote, vote to approve the agreement. It follows that the Agreement cannot be said to have been ‘made’ under s 182(1) and the Commission has no jurisdiction to consider the application under s 185. Regrettably, there is no discretion available to the Commission to waive the requirements of s 181(2) of the Act and the application cannot proceed in its present form.

[7] Accordingly, pursuant to s 587(1)(a) of the Act, I order that application AG2015/183 be dismissed.

DEPUTY PRESIDENT

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