Mitchell Contractors (Vic) Pty Ltd
[2011] FWA 4941
•27 JULY 2011
[2011] FWA 4941 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Mitchell Contractors (Vic) Pty Ltd
(AG2011/1791)
COMMISSIONER RYAN | MELBOURNE, 27 JULY 2011 |
Mitchell Contractors (Vic) Pty Employee Collective Agreement 2011-2013.
[1] An application for approval of the Mitchell Contractors (Vic) Pty Ltd Employee Collective Agreement 2011-2013 was filed with Fair Work Australia on 21 July 2011.
[2] The application is dismissed.
[3] The reason for dismissal of the application is that Employer’s Declaration in Support of Application for Approval of Enterprise Agreement - Form F17 specifically declares that no Notice of Employee Representational Rights was issued to employees. The Form F17 sworn by Mr Andrew Hunter, OHS Officer of the Applicant declared that bargaining commenced because the employer in “March 2011 agreed with employees to setup own agreement to suit employee needs”.
[4] Compliance with s.173 is a necessary precondition to making an enterprise agreement. An employer cannot request employees to approve an enterprise agreement under s.181 until at least 21 days after the last notice under subsection 173(1) in relation to the agreement is given. In the present matter the enterprise agreement has not been made. There is therefore no enterprise agreement capable of being the subject of an application for approval.
Other observations not forming part of the decision to dismiss
[5] The Application for Approval of Enterprise Agreement - Form 16 was not signed, dated nor contained any identification of the person making the application on behalf of the employer.
[6] The Application for Approval was filed with FWA outside the time specified in s.185(3)(a).
[7] The Form F17 did not answer questions 3.1, 3.2 and 3.3 which meant that no modern award was identified as the reference instrument for the Better Off Overall Test.
[8] The copy of the Agreement filed with FWA was not signed by either the employer or any employee representative.
[9] The Agreement is so poorly drafted that it could not in its current form be approved. From my examination of the Agreement it would appear that even if undertakings were offered by the employer to address concerns of FWA the number and substance of the undertakings needed would result in substantial changes to the Agreement.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR512602>
0
0
0