Lightforce Australia Pty Ltd
[2011] FWA 1675
•17 MARCH 2011
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DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Lightforce Australia Pty Ltd
(AG2010/20432)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 17 MARCH 2011 |
Lightforce Australia Enterprise Agreement November 2010.
[1] On 1 December 2010 Lightforce Australia Pty Ltd (Lightforce) lodged an application for approval of the Lightforce Australia Enterprise Agreement November 2010 (the agreement), pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application was referred to me for consideration.
[2] On 16 December 2010 I issued Preliminary Findings in which I sought clarification of the process followed to reach the agreement and advice, or undertakings with respect to a number of issues relating to the agreement content. These Preliminary Findings requested a response within two weeks.
[3] Lightforce did not respond to this request until 17 January 2011, when it advised that, as a result of health issues, a management representative would not be available for some time. An extension of the time allocated for a response was provided.
[4] No response was ultimately received from Lightforce and, as a consequence, the application was listed for a hearing by telephone today. At this hearing Ms Leniger-Sherratt represented Lightforce and Mr Shiell participated as an employee representative.
[5] At the hearing Lightforce confirmed that no Notice of Representational Rights had been issued to employees but that the agreement proposal had been discussed with them. Section 173 of the Act states:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.”
[6] Further, s.181(2) states:
“181 Employers may request employees to approve a proposed enterprise agreement
....
(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.”
[7] The requirement to issue a Notice of Representational Rights is fundamental to the agreement making process and, absent compliance with these provisions a proposed agreement cannot be approved.
[8] As a consequence, this decision confirms that the application is refused.
[9] At the hearing of this matter I outlined to the parties the process that should be followed in the event that a new application is proposed to be made. I also drew to the attention of the parties the issues of content set out in my Preliminary Findings of 16 December 2010 and suggested that consideration be given to these issues to expedite consideration of any revised agreement proposal.
SENIOR DEPUTY PRESIDENT
Appearances:
M Leniger-Sherratt, representing Lightforce Australia Pty Ltd
A Shiell, employee representative of Lightforce Australia Pty Ltd.
Hearing details:
2011.
Adelaide (By telephone):
March 17.
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