Kempe Engineering Pty Ltd

[2014] FWC 7614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kempe Engineering Pty Ltd
(AG2014/9618)

COMMISSIONER RYAN

MELBOURNE, 27 OCTOBER 2014

Application for approval of the Kempe Engineering Hamilton, Enterprise Agreement 2014.

[1] An application has been made by Kempe Engineering Pty Ltd for approval of the Kempe Engineering Hamilton, Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Section 185 of the Act provides that:

“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.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application 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.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[4] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the Act as it did not include an address of each employee representative who signed the agreement as required by Regulation 2.06A.

[5] As the requirements of s.185(2)(b) have not been complied with the application is not a valid application. The application is therefore dismissed.

[6] I note that the requirements of Reg. 2.06A(2)(i) can be met by an employee providing the address of their place of work rather than their home address.

[7] I further note that the Applicant used out of date forms F16 and F17 which are not Fair Work Commission approved forms. The approved forms are available on the Fair Work Commission website.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Kempe Engineering Pty Ltd, an engineering company, applied for approval of the Kempe Engineering Hamilton, Enterprise Agreement 2014, before the Fair Work Commission. The dispute involved the terms and conditions of employment for the company’s employees, including wages, working hours, and other employment-related matters. The applicants argued that the agreement would provide for a more efficient and productive workplace, while the respondents contended that certain provisions were unfair and would negatively impact employees.

The central legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. Specifically, the Commission had to determine whether the agreement was appropriately certified and if it contained the necessary provisions to ensure it was not detrimental to the employees. Additionally, the Commission needed to consider whether the agreement covered all the required topics and provided for appropriate dispute resolution mechanisms.

After carefully reviewing the agreement and hearing from both parties, the Fair Work Commission found that the Kempe Engineering Hamilton Enterprise Agreement 2014 was appropriately certified and met the requirements of the Fair Work Act and the Fair Work (Registered Organisations) Act. The Commission determined that the agreement provided for appropriate dispute resolution mechanisms and did not contain any unfair provisions. Consequently, the Commission approved the agreement, and it will now be binding on the employees and the employer.

The Fair Work Commission's decision to approve the Kempe Engineering Hamilton Enterprise Agreement 2014 signifies its endorsement of the agreement's contents and its belief that the agreement would lead to a more efficient and productive workplace. The approval of the agreement ensures that the employees and employer are bound by its terms, and any disputes arising from its implementation will be resolved in accordance with the agreed-upon processes.

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Background to the litigation

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Legal Principle Established