Narpio Pty Ltd T/A Lismore Bowl

[2010] FWA 3304

[2010] FWA 3304

FAIR WORK AUSTRALIA

DECISION

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

Narpio Pty Ltd T/A Lismore Bowl
(AG2010/7663)

COMMISSIONER CAMBRIDGE SYDNEY, 23 APRIL 2010

Application for approval of the Lismore Bowl Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement apparently to be known as the Lismore Bowl Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Narpio Pty Ltd T/A Lismore Bowl (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 30 March 2010. The application included a Statutory Declaration of Ken Gausden, made on behalf of the Employer and dated 29 March 2010, (the Declaration). The Declaration stated that the Agreement was made on 18 March 2010, thereby satisfying the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

[4] As can be seen from subsection 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.

[5] In this instance, the Declaration stated that the date on which the last notice of representational rights was provided was 15 February 2010. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 15 February 2010.

[6] Consequently the Agreement does not comply with the requirements of subsection 181 (2) of the Act.

[7] It would be conceivable that the failure of the application to meet the particular procedural requirement of subsection 181 (2) of the Act could have arisen from mistake or some inadvertent error. If this were the only deficiency with the application some proper process to possibly permit correction or amendment would be contemplated. Unfortunately other important deficiencies have been identified with the application and the accompanying documentation.

[8] In this instance some potential deficiency would arise in respect of subsections 180 (5) and 180 (6) of the Act which state:

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.

[Emphasis added]

[9] The Declaration indicated that there were three employees of less than 21 years of age. However in point 2.5 of the Declaration which specifically refers to subsection 180(5) of the Act, the following was recorded:

“AT THE MEETING HELD ON 16th FEBRUARY ALL EMPLOYEES HAD PREVIOUSLY HAD A CHANCE TO READ THE LISMORE BOWL ENTERPRISE AGREEMENT AND A DISCUSSION OF THE SIX CLAUSES CHANGED FROM THE PREVIOUS AGREEMENT WERE DISCUSSED. I ASSURED THE EMPLOYEES THAT NONE WOULD BE WORSE OFF UNDER THE TERMS OF THE LBEA.”

[10] Consequently there was no evidence of any particular step taken by the Employer relevant to the circumstances and needs of the young employees. It may have been that the young employees were invited to have a parent or other older person attend the workplace and /or provide any questions or concerns about the terms of the Agreement on behalf of the young employees.

[11] The difficulty for FWA is that the absence of any mention of anything done by the Employer that connects to the circumstances and needs of young employees would create an evidentiary impediment to any compliance with subsection 180 (5) of the Act.

[12] Further, it should be noted that the relevant reference instrument for the better off overall test would be the Amusement, Events and Recreation Award 2010 [MA000080], rather than the AWU Tenpin Bowling Industry Award 2003 as stated at point 3.1 of the Declaration.

[13] A further potential deficiency arose in respect to the witness provisions of the Declaration. It appeared that the Declaration had been witnessed by a Ronnie James Rort who gave the qualification of “manager” in connection with the witnessing of the Declaration. A manager is not specified as an occupation or a person before whom a Statutory Declaration may be made in accordance with Schedule 2 of the Statutory Declarations Regulations 1993.

[14] The Agreement document was also deficient in at least two important areas. Firstly, clause 1 Parties Bound, stated at 1.1 that; “This agreement is a single-enterprise agreement and will be known as the [insert business name] Agreement.” Additionally, at sub-clause 1.2 the Agreement stated; “This Agreement applies to: (a) [insert employer name]”

[15] Secondly, the Agreement was not signed by any employee representative.

[16] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.

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