Maritime Container Services Pty Ltd
[2010] FWA 9294
•2 DECEMBER 2010
[2010] FWA 9294 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/20335)
COMMISSIONER CAMBRIDGE | SYDNEY, 2 DECEMBER 2010 |
Application for approval of the Maritime Container Services Pty Ltd, Container Repair Collective Agreement 2010
[1] An application has been made for approval of an enterprise agreement known as the Maritime Container Services Pty Ltd, Container Repair Collective Agreement 2010(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Maritime Container Services Pty Ltd(the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Sydney on 24 November 2010. The application included a purported Statutory Declaration of Alicia Ferreira made on behalf of the Employer and dated 22 November 2010, (the putative Declaration). The putative Declaration did not provide details of the full name and qualification to witness a Statutory Declaration. The putative Declaration stated that the Agreement was made on 11 November 2010. Therefore it appeared that the application may have been 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), 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.
[5] In this instance, the putative Declaration stated that the date on which the last notice of representational rights was provided was 4 November 2010. The putative Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 11 November 2010.
[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.
[7] Further, the putative Declaration did not clearly state the number of employees who voted to approve the Agreement. It appeared from the contents of point 2.7 of the putative Declaration that only 4 out of 17 employees voted to approve of the Agreement.
[8] In addition, the putative Declaration, at point 3.1, did not identify any Modern Award as a reference instrument. Mention of the “Metals Engineers and Associated Industries Award1998 Incorporated” appeared to be erroneous. There was an unfortunate absence of any comparative data in the putative Declaration.
[9] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.
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