Linfox Queensland (Bata Vending Filler Technicians) Agreement 2009
[2011] FWA 1955
•30 MARCH 2011
[2011] FWA 1955 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Linfox Queensland (Bata Vending Filler Technicians) Agreement 2009
(AG2011/506)
Road transport industry | |
COMMISSIONER CAMBRIDGE | SYDNEY, 30 MARCH 2011 |
[1] An application has been made for approval of an enterprise agreement known as the Linfox Queensland (Bata Vending Filler Technicians) Agreement 2009 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Linfox Australia [sic] (the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Sydney on 18 March 2011. The application included a purported Statutory Declaration of Gaylynne Neil dated 17 March 2011 and made on behalf of the Employer (the purported Declaration). The purported Declaration was witnessed by Nick Leon who stated that the qualification he held to witness the Statutory Declaration was “Workplace Relations Advisor”. Although an admirable vocation, a Workplace Relations Advisor does not qualify as basis to witness a Statutory Declaration.
[3] The purported Declaration stated that the Agreement was made on 1 March 2011. Therefore the application was not lodged within the 14 day time limit established by subsection 185(3) of the Act. Subsection 185(3) (b) of the Act provides a discretion to extend the lodgement time limit “if in all the circumstances FWA considers it fair to extend that period ...”
[4] The purported Declaration provided the following details in support of the exercise of the discretion to extend time: “The delay in lodgement was due to the absence from work of the Linfox officer responsible for the agreement.” Unfortunately there was no explanation as to the reason for the absence from work of the responsible “Linfox officer” and the impact that this absence had on the apparent incapacity to have another “Linfox officer” attend to the lodgement of the application.
[5] In this instance I have decided not to exercise the discretion provided by subsection 185(3) (b) of the Act.
[6] In declining to extend the lodgement time limit I have considered all the circumstances and concluded that it would not be fair to allow the late lodgement of the application. In particular I have had regard for various deficiencies in the purported Declaration. In addition to the underlying invalidity of the qualification of the witness, the document does not supply any comparison data information whatsoever. Each question in Part 3 of the document is either left blank, or contains the entry “N/A”.
[7] Consequently the absence of any comparison data means that the Agreement is unable to be properly assessed for the purposes of the better off overall test. In any event, the Agreement appears to provide for ordinary weekly hours of up to 45 with “...a weekly spread of hours between Monday to Sunday inclusive,...” and without any specified daily spread of ordinary hours. These provisions and various other terms in the Agreement create significant potential that the Agreement would not comply with the minimum terms of employment established by the National Employment Standards. Although no proper comparison can be made the Agreement would also appear to be likely to fail the better off overall test.
[8] In such circumstances I decline to exercise the discretion to extend the lodgement time limit established by subsection 185(3) of the Act. The application has not been made in accordance with the Act and is dismissed.
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