Melbourne Satellites Pty Ltd

[2013] FWC 1314

[2013] FWC 1314

FAIR WORK COMMISSION

DECISION

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

Melbourne Satellites Pty Ltd
(AG2013/197)

COMMISSIONER ROE MELBOURNE, 1 MARCH 2013

Application for approval of the Melbourne Satellites Single - Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Melbourne Satellites Single - Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Melbourne Satellites Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] The application was made on 30 January 2013. I wrote to the employer on 7 February 2013 outlining a number of concerns. The employer responded on 12 February 2013. I responded further on 13 February 2013. On 15 February 2013 the employer requested more time to respond. The employer responded further on 24 February 2013. My Associate responded on 27 February 2013 advising that:

“As advised on 7 February 2013 we are concerned that the requirement for at least 21 days after the day on which the notice of representational rights is given has not been met. The subsequent correspondence has reinforced these concerns and raised additional concerns including that the notice was not consistent with the requirements of the legislation that the notice must comply with the form and content of the notice prescribed in the regulations. As explained earlier the Commissioner does not believe that he has any discretion under the legislation to waive these requirements.”

[3] I gave the Applicant an opportunity to be heard further if required.

[4] At question 2.8 of the F17 Statutory Declaration the employer states that the last notice was issued on 8 January 2013 and that voting commenced on 29 January 2013. This is not 21 days after 8 January 2013 as required by Section 181(2) of the Act. The Respondent confirmed in subsequent correspondence that these dates were in fact correct and also that the  notice of representational rights issued did not contain the following passage as prescribed by the regulations:

“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”

[5] The Act requires that the notice must contain the content and be in the form prescribed by the Regulations. Section 174(1A) and Section 178(3) relevantly provide:

“(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

.....

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.”

[6] I cannot approve the Agreement because Section 181(2) and Section 174 have not been complied with.

[7] The Application was made by Mr Emeny who says he is a bargaining representative appointed by the two employees who will be covered by the Agreement. Mr Emeny has signed the Agreement as the employee’s authorised representative. Mr Cowling has signed the Agreement on behalf of the employer. In response to my query Mr Emeny says that he is engaged on an annual basis for a fixed weekly fee by the employer to assist with business procedures and obligations. He says that: “the employees chose me due to their knowledge of my background, separation and independence from the businesses management.” Regulation 2.06 of the Fair Work Regulations 2009 pursuant to Section 178(3) of the Act provides as follows:

“2.06 Appointment of bargaining representatives — independence

A bargaining representative of an employee must be:

(a) free from control by the employee’s employer or another bargaining representative; and

(b) free from improper influence from the employee’s employer or another bargaining representative.”

[8] I seriously doubt that the appointment of Mr Emeny is consistent with this regulation. This brings into doubt whether the requirement that employees have genuinely agreed to the Agreement has been met (Section 188(c)).

[9] I also had concerns as to whether or not the employees to be covered by the agreement have been fairly chosen. The Agreement only covered two employees and there were other employees in other sections of the business. There were also a large number of areas where I was concerned that the Agreement may not meet the Better Off Overall Test and one matter where there was possible conflict with the NES. In response to my concerns the employer indicated that they were prepared to offer undertakings which if accepted would have overcome many of them. The employer also indicated a preparedness to consider alteration to the coverage of the Agreement.

[10] For the reasons outlined earlier the Agreement cannot be approved and the Application is dismissed.

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