Melian Transport Pty Ltd - [2012] FWA 8975

[2012] FWA 8975

FAIR WORK AUSTRALIA

DECISION

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

Melian Transport Pty Ltd
(AG2012/10992)

MELIAN TRANSPORT PTY LTD ENTERPRISE AGREEMENT 2012

Road transport industry
COMMISSIONER ASBURY	BRISBANE, 19 OCTOBER 2012

Notice of employee representational rights under s.173 of Fair Work Act 2009 - Omission of default representative provision - Tribunal not satisfied that employees genuinely approved the agreement - application for approval of agreement refused.

Introduction

[1] Melian Transport Pty Ltd has made an application under s.185 of the Fair Work Act 2009 (the Act) for the approval of the Melian Transport Pty Ltd Enterprise Agreement 2012 (the Agreement).

[2] The Application for Approval of the Enterprise Agreement indicates that the Applicant’s representative is Hemming + Hart Solicitors and that the contact person is Mr Jonathan Hadley. The Application also indicates that Hemming + Hart Solicitors is a bargaining representative for the employer. As required by s.185(2) of the Act and the Fair Work Australia Rules 2010,the application is accompanied by Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement. That form has been completed by Mr Ian Hawes, a Director of Melian Transport Pty Ltd.

[3] Question 2.4 of the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17) relevantly asks:

“2.4 Did the employer take all reasonable steps to give notice of the rights to be represented by a bargaining representative to each employee who will be covered by the Agreement as required by s.173?

[ ] Yes

[ ] No - see note below

If “Yes”, please attach a copy of the notice given to employees and explain the steps taken:”

Note The notice required by s.173 must meet the relevant requirements of s.174. A form of notice has been prescribed and can be found in Schedule 2.1 to the Fair Work Regulations 2009 at In the box under question 2.4 an “X” has been placed indicating that the answer is “Yes”. There is also a statement that the Notice of Representational Rights provided to employees of Melian Transport Pty Ltd dated 13 August 2012, is annexed to the declaration. The Notice appended to the declaration does not contain the information set out in s.174(3) of the Act in relation to default representation.

[5] The Form F17 filed by Melian Transport states that there are six employees who will be covered by the Agreement and who cast a valid vote. It is also stated that five employees voted to approve the Agreement.

[6] On 28 September 2012, correspondence was forwarded by my Associate to the Bargaining Representative for Melian Transport Pty Ltd, indicating my concerns that the Notice of Employee Representational Rights appended to the application for approval of the Agreement did not contain the provision set out in s.174(3) of the Act, and requiring confirmation that the notice appended to the application for approval of the Agreement was the actual notice given to employees. The correspondence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Melian Transport Pty Ltd [2012] FWA 8975
Case: [2012] FWA 8975
Decision Date: 19 OCTOBER 2012

CaseChat Overview and Summary

In the recent decision of Melian Transport Pty Ltd, the Fair Work Commission addressed an application for the approval of a workplace agreement. The dispute arose between Melian Transport and its employees, primarily concerning the omission of a default representative provision in a proposed enterprise agreement. The Commission was tasked with determining whether the agreement could be approved in light of the omission and whether the employees had genuinely approved the agreement.

The legal issues before the Commission included whether the omission of the default representative provision rendered the agreement invalid and whether the employees had genuinely approved the agreement. Under section 173 of the Fair Work Act 2009, the Commission must consider whether employees have genuinely approved an agreement before granting approval. The omission of a provision regarding default representatives could potentially undermine the genuineness of employee approval.

The Fair Work Commission found that the omission of the default representative provision was significant and could not be overlooked. The Commission was not satisfied that the employees had genuinely approved the agreement given the absence of this critical provision. Consequently, the Commission refused the application for approval of the agreement. The decision underscores the importance of including all necessary provisions in an enterprise agreement to ensure genuine employee approval.

Orders