Matthew Carroll Trading as Unified Contracting Services

[2025] FWC 1272

[2025] FWC 1272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Matthew Carroll Trading as Unified Contracting Services

(AG2025/749)

COMMISSIONER TRAN MELBOURNE, 9 MAY 2025

Application for approval of the Unified Contracting Services Pty Ltd Single Enterprise Agreement 2025-2028 – Not satisfied that the requirements under s 186 have been met – Application dismissed.

1. On 20 March 2025, Matthew Carroll Trading as Unified Contracting Services applied to the Fair Work Commission for approval of the Unified Contracting Services Pty Ltd Single Enterprise Agreement 2025-2028 under s 185 of the Fair Work Act 2009 (Cth). The agreement would cover 2 employees.

1. Section 185 of the Act requires that an application for approval of an enterprise agreement includes a signed copy of the enterprise agreement and any declarations required by procedural rules. The Fair Work Commission Rules 2024 require that the employer file a declaration in support of an application for approval of a single-enterprise agreement (other than a greenfields agreement), in the approved form and that all documents must be signed and dated.[1]

1. In order for an agreement to be approved, the Commission must be satisfied of the matters in sections 186 and 187 of the Act. Among other matters, the Commission must be satisfied that the agreement has been genuinely agreed, and that the agreement passes the better off overall test.

1. Section 188 of the Act sets out the consideration when determining whether an Agreement is genuinely agreed and (among other mattes) requires that the employer comply with requirements relating to:

·   the Notice of Employee Representational Rights in sections 173 and 174; and

·   explanation of the terms and effect of the agreement in section 180(5).

1. Section 188 also requires that the Commission is satisfied that employees who were requested to approve the agreement have a sufficient interest and are sufficiently representative having regard to the employees the agreement is expressed to cover.

Procedural Matters

1. On 31 March 2025, my chambers emailed the applicant with a list of concerns with the application. Among the concerns were that:

1.   The F17B declaration was not signed by the applicant;

2.   It was not clear whether the employer had issued a Notice of Employee Representational Rights;

3.   No information was provided about the content of an explanation about the terms of the agreement;

4.   It was not clear how 2 employees could be sufficiently representative when the agreement is expressed to cover a greater number of classifications across different types of trades persons, including communications and electrical tradespersons; and

5.   Multiple concerns regarding whether the agreement passed the better off overall test.

1. The applicant has not replied to the Commission’s email. My chambers followed up on 8 April 2025 and again on 2 May 2025. The applicant did not provide a telephone number in its application. The applicant was informed that if they did not reply to emails, the Commission would proceed to determine the matter on the material available to us.

Issue (1) – Failure to Comply with Procedural Rules

1. The applicant has not signed its Form F17B as required by the Rules. The F17B is a declaration that provides information to the Commission so that the Commission can be satisfied of the matters under s 186 and 187 of the Act. Without a signed F17B, I simply cannot be satisfied of any of the information provided on that Form. I have provided multiple opportunities to the applicant to correct what may simply be an oversight. They have not replied to my Chambers’ correspondence.

Issue (2) – Notice of Employee Representational Rights

1. Section 3 provides the requirements for how and when to provide the Notice and section 174 sets out the requirements for the content of the Notice.

1. The content requirements of the Notice in s 174(1A) are explicit:

1. 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.

1. It does not appear that the employer issued a notice in the form prescribed by the regulations. The employer did issue a ‘Notification Letter of Bargaining’. This letter does not include content prescribed by the regulations, particularly the information about the right a appoint a bargaining representative.

1. While section 188(5) of the Act allows me to disregard minor procedural or technical errors if I am satisfied that employees were not likely to have been disadvantaged by the errors. I am of the view that entirely failing to issue a Notice in the form required cannot be a minor procedural or technical error. If the Notification Letter of Bargaining is intended to be the Notice, then its content not including the essential information about the right to appoint a bargaining representative cannot be a minor procedural or technical error. As the applicant has completely failed to reply to concerns raised, I also do not have any information from which I could be satisfied that employees were not disadvantaged by the errors.

1. My conclusion about the Notice means that I cannot approve the Agreement.

Issue (3) – Explanation of Terms of Agreement

1. However, for completeness, I cannot be satisfied about whether the applicant complied with its obligation to explain the terms and effect of the Agreement, as they have not replied to my chambers’ correspondence.

Issue (4) – Sufficient Interest and Sufficiently Representative

1. I also cannot be satisfied about whether the 2 employees who voted on the Agreement have a sufficient interest or are sufficiently representative, as the applicant has not replied to my chambers’ correspondence.

Issue (5) – Better Off Overall Test

1. Last, I cannot be satisfied that the Agreement would pass the better off overall test. I raised many matters with the applicant about the agreement, but my key concerns relate to rates of pay and conditions of employment of apprentices under the Agreement.

1. The Agreement provides that apprentices will be paid the National Training Wage (clause 11.3). The National Training Wage is significantly lower than apprentice rates of pay in the Award. Further, other than providing that employees will be paid the base training rate where they attend trade school during working hours (clause 11.17), the Agreement does not provide for any of the other entitlements in the Award for apprentices (award clause 12), such as:

   ·   payment of training costs, including for prescribed texts;

   ·   travel costs for block release training;

   ·   whether time spent attending training or assessment is to be regarded as time worked; or

   ·   how attendance at training on rostered days off are dealt with.

1. Nor does the Agreement provide any of the protections in Schedule D to the Award for school-based apprentices.

Conclusion

1. I am not satisfied that the employer gave notice of the right to be represented by a bargaining representative. I find that this is not a minor procedural or technical error, and cannot disregard it. I am also not satisfied that the employer took all reasonable steps to explain the terms and effect of the Agreement nor that the Agreement passes the better off overall test. As a result, I am not satisfied that the requirements under s 186 have been met and do not approve the Agreement.

1. I dismiss the application for approval of the Unified Contracting Services Pty Ltd Single Enterprise Agreement 2025-2028.

COMMISSIONER

[1] Fair Work Commission Rules 2024, Rule 19 and 32

Printed by authority of the Commonwealth Government Printer

<PR787099>