Manildra Energy Australia Pty Ltd

[2015] FWC 1413

[2015] FWC 1413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Manildra Energy Australia Pty Ltd
(AG2015/1926)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 3 MARCH 2015

Application for approval of the Manildra Group of Companies and AWU West Melbourne Site Agreement 2014.

[1] An application has been made by Manildra Energy Australia Pty Ltd for approval of the Manildra Group of Companies and AWU West Melbourne Site Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] 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)

[3] 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)

[4] 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.

[5] As the requirements of s.185(2)(b) have not been complied with the application is not a valid application. The application is therefore dismissed.

Observation

[6] I make the following observation on one provision of the Agreement. This observation does not form part of the decision to dismiss the application in this matter but is made to assist the parties if they wish to make an enterprise agreement and seek to have it approved by the Commission.

[7] Clause 17.1(a), which deals with personal/carers leave contains the following provision:

“Except in emergency situation, employees are required to inform the company of their inability to attend for duty by 2pm on the day of the shift and as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.”

[8] Whilst s.107(5) of the Act permits enterprise agreements to include terms relating to the kind of evidence that an employee must provide to an employer there is no provision within s.107 which permits an enterprise agreement from containing a term which provides for notice requirements which are more onerous on an employee than the notice requirements of s.107(2) of the Act. The requirement in clause 17.1(a) that an employee must notify the employer of their absence “by 2pm on the day of the shift” is more onerous than the requirement of s.107(2).

[9] Where an enterprise agreement seeks to replace the operation of s.107(2) of the Act with a more onerous notice requirement such a term of an enterprise agreement would appear to contravene s.55 of the Act and an enterprise agreement with such a term could not be approved by the Commission given the operation of s.186(2)(c) of the Act.

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