Loganhill Pty Ltd

[2015] FWC 3344

[2015] FWC 3344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Loganhill Pty Ltd
(AG2015/1092)

COMMISSIONER RYAN MELBOURNE, 15 MAY 2015

Application for approval of the Loganhill Pty Ltd Agreement 2015-2018.

[1] An application has been made by Loganhill Pty Ltd (Applicant) for approval of an enterprise agreement known as the Loganhill Pty Ltd Agreement 2015-2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Notice of employee representational rights

[2] Section 181 of the Act states:

“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 untilat 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.” [underlining added]

[3] Based on the information contained in the Form F17 Employer’s statutory declaration in support of an application for approval of an enterprise agreement, voting on the agreement by employees occurred on 11 May 2015 which is the twenty first day after 20 April 2015 (the date the last Notice of Employee Representational Rights (NERR) was given to employees). In other words, voting on the agreement commenced before “at least 21 days after” the last NERR was given to employees as required bys.181(2) of the Act.

[4] The Fair Work Commission’s Enterprise Agreement Benchbook which is available on the FWC website provides a simple explanation of the correct approach to calculating time periods:

“Section 36(1) of the Acts Interpretation Act 1901 (Cth)1 deals with the manner in which time is to be calculated in interpreting the Fair Work Act. It reads:

(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

This means that when calculating time you do not count the day on which the relevant act or event occurs or occurred.” 1

[5] As such, the agreement was not properly “made” in accordance with s.182 of the Act, nor was it genuinely agreed to as defined in s.188 of the Act. The application for approval of the Agreement is therefore dismissed.

Signature Requirements

[6] Section 185(2) of the Act provides that an application for approval of a single-enterprise agreement must be accompanied by a signed copy of the agreement. Regulation 2.06A of the Fair Work Regulations sets out the requirements for signing an agreement. An Agreement must be signed by both the Employer and at least one bargaining representative.

[7] 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)

[8] 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)

[9] 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 of the employer and employee representatives who signed the agreement as required by Regulation 2.06A.

[10] As the requirements of s.185(2)(b) have not been complied with, and because the agreement was not properly “made” in accordance with s.182 of the Act, nor was it genuinely agreed to as defined in s.188 of the Act, the application is not a valid application. Therefore, the application for approval of the Agreement is dismissed.

Observations

[11] I have considered the terms of the proposed agreement and, had the application been validly made, I would have raised a number of concerns in relation to the contents of the agreement. To assist the employer I make the following observations as to the contents of the agreement. These observations are not part of the decision in this matter.

[12] Clause 11 refers to a roster cycle with an average of 38 hours per week, but does not provide a definition of what that cycle looks like. This poses a significant difficulty in satisfying the Better Off Overall Test as the language of the Agreement would permit the employer to set a roster cycle of 1 year or more. Whereas the relevant modern award has a maximum period of 28 days for the averaging of ordinary hours.

[13] Clause 13.2 contains a provision for the notice requirements for the taking of personal/carer’s leave. The notice requirements are more onerous obligations on the employee than is provided for in the Act, which states:

“107 Notice and evidence requirements

Notice
(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.

[14] Clause 18.2 contains a provision which permits the employer to withhold monies due to the employee if the requisite notice is not given upon termination, without the employee’s consent. I refer to the reasons set out in Hydro Chem Pty Ltd, [2014] FWCA 5163 in support of the contention that this provision is unenforceable given s.324(1)(b) of the Act.

[15] The Agreement does not contain a consultation term which meets the requirements of s.205(1) and (1A) of the Act.

COMMISSIONER

 1   Shop, Distributive and Allied Employees Association v White’s Discounts Pty Ltd (2003) 128 IR 68 [15]–[16].

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