Molec Electrical Contractors Pty Ltd

[2013] FWC 4310

[2013] FWC 4310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Molec Electrical Contractors Pty Ltd
(AG2013/6625)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 JULY 2013

Application for approval of the Molec Electrical Contractors Pty Ltd Enterprise Agreement 2010 - dismissed.

[1] An application has been made by Molec Electrical Contractors Pty Ltd (Molec) for approval of an enterprise agreement known as the Molec Electrical Contractors Pty Ltd Enterprise Agreement 2010 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act).The Agreement is a single-enterprise agreement.

[2] This matter was listed for hearing as I had a number of concerns regarding the application. Mr Tom Kelly represented Molec at the hearing.

[3] Mr Kelly confirmed that, as stated in his Form F17, the voting process concluded on 29 April 2013. The application was not lodged until 23 May 2013. Applications for approval are required to be filed 14 days after the voting is concluded, making this application some nine days late. Even if I accepted the explanation for the delay in filing as given by Mr Kelly the application had not complied with s.174 of the Act.

[4] Section 174 of the Act sets out the content and form that the Notice of Employee Representational Rights should take. In particular it states:

“(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.”

[5] The Notice issued to the employees at Molec advised them they could appoint a bargaining representative. However, the Notice did not advise the employees that if they were members of a union the union would be their bargaining representative unless they appointed another person or revoked the union’s status.

[6] Section 174(6) provides that the Regulations may prescribe matters relating to both the content of a Notice of Employee Representational Rights and/or the form of such Notice. Regulation 2.05 provides:

“2.05 Notice of employee representational rights — prescribed form

For subsection 174 (6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[7] The Notice in Schedule 2.1 of the Regulations is prescribed and must be used by an employer in order to comply with both sections 173 and 174 of the Act.

[8] The Regulations do not permit the employer to delete sentences or to add any additional comments, restrictions, directions to the words prescribed in Schedule 2.1 of the Regulations except as provided for in Schedule 2.1.

[9] This does not mean that an employer must simply copy Schedule 2.1 and issue it to employees.

[10] The very structure of Schedule 2.1 requires the employer to add essential and prescribed information such as the name of the employer and the name of the enterprise agreement and the proposed coverage of the enterprise agreement.

[11] Schedule 2.1 permits an employer to delete up to two paragraphs of the contents of Schedule 2.1 in circumstances where there is no low-paid authorisation or where no employees are covered by an individual agreement-based transitional instrument.

[12] The Notice of Employee Representational Rights issued to employees in this matter did not conform to the prescribed form set out in Schedule 2.1 and therefore the employer had not complied with the requirements of s.174 of the Act.

[13] The application for approval of the Agreement is dismissed.

DEPUTY PRESIDENT

Appearances:

T. Kelly for Molec Electrical Contractors Pty Ltd.

Hearing details:

2013.

Melbourne:

June 19.

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