Narre Warren Superbowl Pty Ltd T/A Narre Warren Superbowl
[2010] FWA 1397
•22 FEBRUARY 2010
[2010] FWA 1397 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/3776)
COMMISSIONER LEWIN | MELBOURNE, 22 FEBRUARY 2010 |
Narre Warren Superbowl Enterprise Agreement.
[1] On 4 January 2010, Narre Warren Superbowl t/as Narre Warren Superbowl lodged an application in Fair Work Australia for the approval of an enterprise agreement under s.185 of the Fair Work Act 2009 (the Act). An employer’s declaration in support of the application was provided with the application. The declaration states that the Agreement was made on 19 December 2009.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] Section 185 of the Act provides the procedure which must be followed by bargaining representatives when making applications to Fair Work Australia for the approval of an enterprise agreement and is set out below:
“185 Bargaining representative must apply for FWA approval of an enterprise agreement
Application for approval
(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.
(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:
(a) an employer covered by the agreement; or
(b) a relevant employee organisation that is covered by the agreement.
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.
(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.
Signature requirements
(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.”
[4] I refer in particular to s.185(3)(a) which provides that an application must be made “within 14 days after” the agreement is made (emphasis added). The application was lodged in Fair Work Australia on 4 January 2009. The application was therefore filed 16 days after the agreement was made. While s.185(3)(b) provides the Tribunal with the discretion to extend that period, the Agreement, as stated above, was made during the bridging period and the application is therefore subject to modifications prescribed by Schedule 7 of the Transitional Act.
[5] I refer in particular to Item 15 of Schedule 7 of the Transitional Act which is set out below:
“15 No extension of time to apply for approval of agreement made in final 14 days of bridging period
Paragraph 185(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of an enterprise agreement) does not apply in relation to an enterprise agreement made during the period of 14 days ending at the end of the bridging period.
Note: If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:
(a) FWA cannot approve the enterprise agreement; but
(b) another enterprise agreement may be made in accordance with Part 2-4 of the FW Act.”
[6] The Agreement was made on 19 December 2009, within the period of “14 days ending at the end of the bridging period” as defined in the Transitional Act. Accordingly, Item 15 of Schedule 7 of the Transitional Act excludes the operation of s.185(3)(b) of the Act which provides the Tribunal with the discretion to extend the period in which an application may be lodged.
[7] The statutory requirement that the application be filed within 14 days after the Agreement being made has not been met. The Tribunal does not have discretion to accept this application or approve the Agreement. For this reason the Agreement cannot be approved.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
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