MATES in Construction (Qld) Ltd

[2014] FWC 8098

[2014] FWC 8098

FAIR WORK COMMISSION

DECISION

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

MATES in Construction (Qld) Ltd
(AG2014/9167)

COMMISSIONER CAMBRIDGE SYDNEY, 14 NOVEMBER 2014

Application for approval of the MATES in Construction (Qld) Ltd Collective Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the MATES in Construction (Qld) Ltd Collective Agreement 2014(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MATES in Construction (Qld) Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Brisbane on 29 September 2014. The application included a Statutory Declaration of Jorgen Gullestrup made on behalf of the Employer and dated 18 July 2014, (the Declaration). The Declaration stated that the Agreement was made on 7 July 2014. Therefore the application was not made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] The application was made considerably out of time. It was made some 70 days after the 14 day period fixed by s.185 (3) of the Act. Although the Fair Work Commission (the Commission) has a discretion provided by subsection 185 (3) (b) of the Act, to extend time, it has been unnecessary to contemplate the very brief explanation provided for the late lodgement because of other issues which have arisen with the application.

[4] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. One of these procedural requirements is specified by s.174 of the Act which states as follows:

“174 Content and form of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in operation

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”

[5] As can be seen from subsection 174 (1A), a notice of employee representational rights must, inter alia, contain the content prescribed by the regulations, not contain any other content, and be in the form prescribed by the regulations.

[6] In this instance, a copy of the notice of employee representational rights was not provided with the application. However, following a request from my relief Associate, a copy of the notice of employee representational rights was subsequently sent to the Commission on 7 October 2014. The notice of employee representational rights contained content other than that prescribed by the regulations and it omitted certain content prescribed by the regulations.

[7] A Full Bench of the Commission issued a Decision on 2 April 2014 1 which dealt with inter alia, the operation of the provisions of section 174 of the Act. Importantly this Full Bench Decision included the following extracts:

“[33] The Panel characterised the decision in Galintel as supporting the proposition that a Notice need only substantially comply with the requirements of s.174 and Schedule 2.1. The recommendation was a repudiation of the proposition that substantial compliance with the content and form of the Notice in Schedule 2.1 was sufficient. The ‘mischief’ Parliament was seeking to address in responding to the Panel’s recommendation and enacting subsection 174(1A) was the past practice of making alterations to the content or form of the Notice.” [emphasis added]

“[39] The language of s.174(1A), the context and legislative purpose all support the proposition that a failure to comply with the provision goes to invalidity.”

[8] Consequently, the application for approval of the Agreement does not comply with the requirements of s.174 of the Act. The nature of this particular aspect of the non-compliance manifests as a deficiency which renders the application to be invalid.

[9] Further, the application did not include a signed copy of the Agreement as required by the combination of subsections 185(2) and 185(5) of the Act and Regulation 2.06A of the Fair Work Regulations 2009, these provisions relevantly state:

“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.

...

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.”

and

“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.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”

[10] Regrettably in this instance the application contained deficiencies. Although some of these deficiencies and other concerns could be redressed or otherwise rectified, the particular deficiency which has arisen under s.174 of the Act cannot be rectified and renders the application as invalid.

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

COMMISSIONER

 1   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.

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