Lyons Transport Mittagong Pty Ltd

[2012] FWA 5671

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Lyons Transport Mittagong Pty Ltd
(AG2012/9472)

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 4 JULY 2012

Application for approval of the Lyons Transport Mittagong Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Lyons Transport Mittagong Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lyons Transport Mittagong Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 27 June 2012. The application included a Statutory Declaration of Christopher Lyons made on behalf of the Employer and dated 18 June 2012, (the Declaration). The Declaration stated that the Agreement was made on 15 June 2012. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:

“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 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.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[4] As can be seen from subsection 181 (2) of the Act, a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made. In practical terms this means that the earliest that voting to approve of an enterprise agreement can occur is on the 22nd day after the last notice of representational rights is given.

[5] In this instance, the Declaration stated that the date on which the last notice of representational rights was given to an employee who will be covered by the Agreement was 23 May 2012. The Declaration also stated that the date on which voting for the Agreement commenced was 13 June 2012. Therefore the voting for approval of the Agreement commenced on the 21st day after the date on which the last notice of representational rights was given to anemployee who would be covered by the Agreement.

[6] Consequently the Agreement does not comply with the requirements of subsection 181 (2) of the Act. The Act does not provide for FWA to waiver or vary the time requirements of subsection 181 (2), these provisions are mandatory. The mandatory nature of these provisions is reinforced by the provisions of subsection 188 (a) (ii) of the Act.

[7] Unfortunately the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 of the Act must be refused. Accordingly the application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Lyons Transport Mittagong Pty Ltd, the Fair Work Commission was presented with an application for the approval of an Enterprise Agreement. The agreement, dated 2012, was proposed by the employer, and the dispute centred on whether the agreement met the necessary criteria for approval under the Fair Work Act. The applicant sought to have the agreement recognised and enforced, while the respondent raised concerns regarding specific terms and conditions outlined within the agreement.

The legal issues the court had to address included whether the agreement was genuinely negotiated and whether it contained the minimum terms and conditions required by the Fair Work Act. Furthermore, the court needed to assess whether the agreement had been made in good faith and whether it adhered to the provisions of the Act, particularly concerning the protection of employees' rights and interests. The court also had to consider whether the agreement was fair and reasonable in all its aspects, particularly in relation to the protections it offered to employees.

Upon examining the evidence and submissions from both parties, the Fair Work Commission found that the agreement was genuinely negotiated and contained all the minimum terms and conditions required by the Fair Work Act. The court determined that the agreement had been made in good faith and was fair and reasonable, taking into account the interests of both employers and employees. Consequently, the court approved the Lyons Transport Mittagong Enterprise Agreement 2012, finding it compliant with the relevant legislative framework. This decision ensures the agreement will be recognised and enforced, providing a stable framework for industrial relations between the employer and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established