Melbourne Civil Engineering Pty Ltd
[2011] FWA 812
•7 FEBRUARY 2011
[2011] FWA 812 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Melbourne Civil Engineering Pty Ltd
(AG2011/5529)
COMMISSIONER RYAN | MELBOURNE, 7 FEBRUARY 2011 |
Melbourne Civil Engineering Pty Ltd Enterprise Agreement.
[1] Application has been made by Melbourne Civil Engineering Pty Ltd for approval of the above named enterprise agreement.
[2] The application was filed with the Tribunal on 2 February 2011 by Mr Rick Knowles, the applicant’s representative. Mr Knowles is an experienced practitioner in industrial relations and in representing employers in enterprise agreement making.
[3] The application was accompanied by a Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17) declared by Lauren D’Onofrio who identified her occupation as Civil Contractor. I note that Ms D’Onofrio identified her occupation as Director when signing the enterprise agreement.
[4] The Form F17 identifies that the vote of the employees to approve the agreement took place on 10 January 2011. This date is more than 14 days prior to the date of the application yet no explanation was given as to why the application had not been made within 14 days of the date on which the agreement was approved. S.185(3)(b) permits the Tribunal to extend the time for making an application for approval of an enterprise agreement “if in all the circumstances FWA considers it fair to extend that period”. Given the failure of the applicant to offer any explanation for the delay in making the application it is not possible for the Tribunal to consider or grant an extension of time to make the application.
[5] I also note that whilst the Form F17 specifically identifies the date of the approval of the enterprise agreement as 10 January 2011 the Form F17 also identifies that “At the meeting on the 30th November 2010, the employees were told that when they voted on the agreement it would be by show of hands and that the date of the vote would be the 9th December 2010. No explanation was given in the Form F17 as to why the vote for approval of the enterprise agreement did not take place until 10 January 2011. There is nothing in the Form F17 to suggest that employees were advised of an amended date for the vote to approve the enterprise agreement.
[6] I also note that the enterprise agreement was signed by Ms D’Onofrio on behalf of the applicant on 20 January 2011 and by Ms MacDonald on behalf of employees on 23 January 2011.
[7] In the circumstances of this application I do not consider it fair to extend the period in which the application was to be made.
[8] The application is dismissed.
[9] Should the applicant intend to make a further application at a later date I make the following observations about the application.
[10] The Form F17 identifies that a Notice of Employee Representational Rights was issued to employees on 20 October 2010. Although required to attach a copy of the Notice to the Form F17 the applicant did not do so.
[11] The Form F17 identifies that of the 4 employees who are to be covered by the enterprise agreement, 3 are from Non-English Speaking Backgrounds. No information was given as to how the terms of the agreement and the effect of the terms of the agreement were explained to these employees and whether the explanation provided by the employer was provided in an appropriate manner taking into account the particular circumstances and needs of non English speaking background employees.
[12] I note that the application for approval identified that there were 2 appointments of a Bargaining Representative for an employee and that both appointed the same Bargaining Representative, Dehlia MacDonald. A Form F18 was filed by Ms MacDonald in which she identified her occupation as Administrator. Ms MacDonald is not an employee who will be covered by the enterprise agreement. However it appears that Ms MacDonald is an employee of the applicant. If this is so it raises real issues as to the independence of Ms MacDonald acting as a Bargaining Representative for other employees of the applicant.
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