MTG Group AUST Pty Ltd

[2019] FWC 1191

[2019] FWC 1191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MTG Group AUST Pty Ltd
(AG2018/5348)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 22 FEBRUARY 2019

Application for approval of the MTG Group AUST Pty Ltd Workplace Agreement 2018.

[1] An application has been made on 24 September 2018 for approval of an enterprise agreement known as the MTG Group Australia Pty Ltd Workplace Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MTG Group AUST Pty Ltd. The agreement is a single enterprise agreement.

[2] On 7 January 2019 staff of the Commission sent an email to the Applicant, Mr Robert Ibrahim noting concerns relating to the application, most notably in relation to compliance with Regulation 2.06A of the Fair Work Regulation 2009 (the Regulations), coverage of the notice of employee representation rights and coverage of the enterprise agreement, concerns relating to section 180(3), section 186(3) and section 186(3A) of the Fair Work Act 2009 (the Act), concerns relating to the National Employment Standards and concerns relating to the Better Off Overall Test. No response was received.

[3] On 17 January 2019 staff of the Commission sent an email to the Applicant seeking a response and providing that the application cannot be progressed until a response is received. No response was received to this email.

[4] On 31 January 2019 staff of the Commission sent another email to the Applicant seeking a response and providing that the application cannot be progressed until a response is received. No response was received to this email.

[5] On 6 February 2019 staff of the Commission sent a further email to the Applicant seeking a response and providing that the application cannot be progressed until a response is received. No response was received to this email.

[6] On 8 February 2019 staff of the Commission sent an email to the applicant seeking a response and providing that the application may be determined on the documentation lodged with the Commission and may be dismissed. No response was received to this email

[7] Section 186 of the Act sets out the general requirements for the Commission’s approval of an enterprise agreement. It relevant provided as follows
…

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met

[1] Regulation 2.06A of the Regulations sets out the requirement for the signing of an enterprise agreement. It relevantly provides as follows:

…

(2)  For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:
(a)  it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b)  it includes:

(i)  the full name and address of each person who signs the agreement; and

(ii)  an explanation of the person’s authority to sign the agreement.

[2] The signature page of the enterprise agreement does not contain the authority of the employer and does not contain the address of the employer or the address of the employee.

[3] Section 180(3) of the Act requires an employer to take all reasonable steps to notify the relevant employees of the “date” and place at which the vote will occur and of the voting method to be used by the start of the access period.

[4] There is insufficient information provided at question 2.5 of the Form F17 statutory declaration to determine if the above requirement has been met. It appears on its face that the employer has not complied with section 180(3) of the Act.

[5] Sections 186(3) and 186(3A) of the Act sets out the requirement that the group of employees covered by the Agreement is fairly chosen. They relevantly provide as follows:

…

(3)  The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A)  If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

[6] Clause 3(a) of the Agreement appears to provide that only those employees who have signed the Agreement are covered by the Agreement. It appears on the face of the clause that the agreement does not comply with section 186(3) and 186(3A) of the Act.

[7] Section 587 of the Act relevantly provides as follows:

…

(1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a)  the application is not made in accordance with this Act; or
(b)  the application is frivolous or vexatious; or
(c)  the application has no reasonable prospects of success.

[8] I am not satisfied the requirements of the Act have been met. The material that is contained in the Form F17 does not provide a basis on which I might be satisfied that the Applicant has complied with some of the required steps before asking employers to approve the Agreement. I therefore would dismiss the Application on this ground alone.

[9] In any event I would not allow a further period within which a response could be provided to the Commission, given the absence of any response from the Applicant despite efforts by staff of the Commission to procure an explanation.

[10] Moreover, even if the Application proceeded, I am not satisfied that relevant employees genuinely agreed to the Agreement because I am not satisfied that the Applicant complied with section 180(3), section 186(3), and section 186(3A) of the Act

[1] For these reasons the Application is dismissed.

DEPUTY PRESIDENT

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