MWM Co. Pty Ltd T/A MWM Blinds

[2014] FWC 3902

[2014] FWC 3902

The attached document replaces the document previously issued with the above code on 12 June 2014.

Paragraphs have been renumbered and the first quote in paragraph [5], now paragraph [6], amended to reflect the exact wording in the revised Employer’s Declaration.

Janet Hall

Associate to Deputy President Kovacic

Dated 13 June 2014

[2014] FWC 3902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MWM Co. Pty Ltd T/A MWM Blinds
(AG2014/5831)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 12 JUNE 2014

Application for approval of the MWM Co. Pty Ltd Enterprise Agreement 2014 Enterprise Agreement 2014 - minimum number of employees - application dismissed.

[1] An application has been made by MWM Co. Pty Ltd T/A MWM Blinds (Applicant) for approval of an enterprise agreement known as the MWM Co. Pty Ltd Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer’s Declaration in Support of the Application for Approval was made by Mr Peter Huang, Director of the Applicant. At 2.10 of the Employer’s Declaration it is stated that only one employee will be covered by the Agreement.

[3] Section 172(6) of the Act provides as follows:

“172 Making an enterprise agreement

...

Requirement that there be at least 2 employees

(6) An enterprise agreement cannot be made with a single employee.”

[4] On 28 May 2014 I wrote to Mr Joshua Pederick, the Applicant’s representative, advising him that I was unable to approve the Agreement as it was inconsistent with the Act and that a decision would be issued shortly. I also advised Mr Pederick if the statutory declaration was incorrect to advise my chambers urgently.

[5] Later that day I received a response from Mr David Beech on behalf of the Applicant. Mr Beech advised me that:

“Peter Huang, the employer and applicant, is the director of MWM Co Pty Ltd but he is also an employee. Form F17A has been amended to reflect that and was declared earlier this afternoon. Please find attached amended Form F17A.

As you will be aware having regard to the way in which the initial application was framed, Peter did not participate in the employee vote. ...”

[6] Attached to that response was a revised Employer’s Declaration which stated at 2.10 that two employees would be covered by the Agreement and that “1 employee voted, I am the other employee”. The Declaration further stated “1 employee approved the agreement. I approve the agreement in my capacity as employer”.

[7] On 4 June 2014 I responded to Mr Beech’s email advising him that his advice, together with the comments at Item 2.10 of the Form F17 that only one employee voted, led me to the view that only that employee was involved in the agreement making process with Mr Huang and that the Agreement was therefore only made with that one employee. As previously advised, this is inconsistent with s.172(6) of the Act. I gave Mr Beech until close of business on Friday, 6 June 2014 to advise my chambers if he wished to have the application listed for hearing and in the absence of this advice or, alternatively, advice that the application for approval is discontinued, I would proceed to publish a decision refusing the application.

[8] I have received no further correspondence from Mr Beech.

[9] As the requirements of s.172(6) of the Act have not been met the Agreement cannot be approved.

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

DEPUTY PRESIDENT

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