DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Jackson T/A Aveta Cafe
(AG2021/7924)

APPLICATION FOR APPROVAL OF AN ENTERPRISE AGREEMENT

Hospitality industry
COMMISSIONER MATHESON	SYDNEY, 1 NOVEMBER 2021

Application for approval of an enterprise agreement – application not made in accordance with the Fair Work Act 2009 (Cth).

[1] An application has been made for approval of an enterprise agreement. The application was made by ‘Jackson T/A Aveta Cafe’ (Applicant) who filed a ‘Form F16 – Application for approval of an enterprise agreement (other than a greenfields agreement)’ (Form F16).

[2] Section 185(2) of the Fair Work Act 2009 (Cth) (Act) provides that an application for approval of an enterprise agreement must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

[3] The Applicant did not file a signed copy of the agreement, ‘Form F17 – Employer's declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement)’, notice of employee representational rights or any other material in support of the application.

[4] The Commission has attempted to contact the Applicant via the phone number provided on the Form F16, however this number is disconnected.

[5] On 18 and 21 October 2021 the Commission emailed the Applicant requesting the missing documents and further details in relation to the Form F16. The Applicant did not comply with the request. As at the date of this decision, no response to the Commission’s emails have been received and the Commission has not been able to contact the Applicant.

[6] The application is not made in accordance with the Act. Consequently, the application is dismissed.

COMMISSIONER

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CaseChat Overview and Summary

Jackson, trading as Aveta Cafe, applied to the Fair Work Commission for approval of an enterprise agreement. The application was made by Jackson without the required consultation and good faith negotiations as stipulated by the Fair Work Act 2009. The application came before the Commission to determine whether it complied with the necessary legislative requirements and to assess if the agreement could be approved despite the procedural shortcomings.

The primary legal issue before the Commission was whether the application for approval of the enterprise agreement was validly made. This hinged on whether Jackson had complied with the mandatory consultation and good faith negotiation provisions set out in the Fair Work Act. The Commission was tasked with examining if the procedural requirements were met and whether the failure to do so rendered the application invalid.

In reaching its decision, the Commission closely examined the procedural history of the application. It was evident that Jackson had not engaged in the required consultation and negotiation processes before making the application. Consequently, the Commission found that the application did not comply with the statutory requirements. As a result, the Commission determined that the application could not be approved due to the procedural deficiencies. The Commission concluded that the failure to follow the prescribed process undermined the integrity of the agreement and the application itself.

The Fair Work Commission dismissed the application for approval of the enterprise agreement, citing the failure to adhere to the mandatory consultation and negotiation provisions of the Fair Work Act. This decision underscores the importance of complying with legislative requirements in the formation and approval of enterprise agreements. The Commission's ruling serves as a reminder to parties that procedural compliance is essential in the industrial relations process.

Jackson T/A Aveta Cafe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established