Malcolm & Johnson Drilling Contractors Pty Ltd
[2010] FWA 5061
•9 JULY 2010
[2010] FWA 5061 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
Malcolm & Johnson Drilling Contractors Pty Ltd
(AG2010/10303)
Mining industry | |
COMMISSIONER SIMPSON | BRISBANE, 9 JULY 2010 |
Application for approval of the Malcolm & Johnson Drilling Contractors Pty Ltd Enterprise Agreement 2010 - 2013.
[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) was made on 7 June 2010 by Malcolm & Johnson Drilling Contractors Pty Ltd for approval of a single enterprise agreement known as the Malcolm & Johnson Drilling Contractors Pty Ltd Enterprise Agreement 2010 - 2013.
[2] On the 29 June 2010 I wrote to the applicant raising two issues of concern. The first issue went to the requirements for signing the agreement as set out in subsection 185(5) and section 2.06A of the Fair Work Regulations 2009. The second issue was regarding the requirements of Section 173 that a notice of representational rights is provided to each employee who will be covered by the agreement and is employed at the notification time.
[3] In my correspondence to the applicant of the 29 June 2010 I stated as follows;
In the Form 17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement provided as part of your application, in answer to the question at clause 2.1(a) “Was a notice of representational rights complying with s.174 given to each employee who will be covered by the agreement in accordance with s.173?” You answered no. However at clause 2.2(a) you specified the date on which the last such notice of representational rights under s.173 (1) was given to an employee who will be covered by the agreement as being the 26 February 2010. Can you confirm if the response to clause 2.1(a) was an error in order that I can determine if the application is in compliance with the requirements of s.173?
[4] The applicant replied in correspondence signed by Debbie Middleton on behalf of Malcolm & Johnson Drilling Contractors Pty Ltd dated 5 July 2010. In relation to the first issue that I had raised, the applicant had attached to their correspondence of 5 July 2010 a signed copy of the Agreement that I believe complies with the requirements for signing the agreement as set out in subsection 185(5) and section 2.06A of the Fair Work Regulations 2009.
[5] However in regard to the second issue concerning the requirements of Section 173 that a notice of representational rights is provided to each employee who will be covered by the agreement and is employed at the notification time, the correspondence of the applicant dated 5 July 2010 said as follows;
“No notice of representational rights was given to each employee as there only being three employees we got together and discussed the agreement.”
[6] It is now clear from the applicant’s correspondence that no notice of representational rights was issued by the employer to the employees. In order to meet this requirement the agreement making process will need to be repeated. Section 188 of the Act requires compliance with section 181(2) of the Act which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights in relation to the agreement is given.
[7] The application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application must be dismissed.
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