Oasis Enterprise International Pty Ltd T/A Hawk Eye Protection

[2010] FWA 2711

[2010] FWA 2711

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

Oasis Enterprise International Pty Ltd T/A Hawk Eye Protection
(AG2010/21)

Security services
COMMISSIONER CLOGHAN	PERTH, 7 APRIL 2010

Application for approval of the Oasis Enterprise International Enterprise Agreement 2010.

[1] On 5 January 2010, Oasis Enterprise International Pty Ltd (“the Applicant”) trading as Hawk Eye Protection, made application for approval of an enterprise agreement pursuant to s.185 of the Fair Work Act 2009.

[2] The Applicant’s declaration in support of the proposed enterprise agreement contained: the reference “TBA” at clauses 2.1, 2.2, 2.7, 2.9, 2.10; the words “Agreement will expire after 31 December 2015” at 2.23; blank at 2.24 and the answer “yes” at 3.3 but “not applicable” at 3.5 (if the answer was “yes” at 3.3, the Applicant is required at 3.5 to set out the terms in the proposed agreement which may result, on balance, in terms and conditions that are more beneficial than the terms and conditions contained in the reference instruments, identified for comparison purposes).

[3] On 16 March 2010, I convened a conference attended by the Applicant and informed him, among other things, of the unsatisfactory nature of the declaration. I also indicated to the Applicant, how other applicants had approached the statutory requirements to gain approval of a proposed agreement. My comments were advisory and not intended to bind the Applicant to a particular approach.

[4] The matter was set down for hearing on 6 April 2010.

[5] Approximately 30 minutes prior to the hearing, the Applicant provided to the Registry with a further declaration in support of the proposed enterprise agreement (Second Declaration). I made the following observations concerning the Second Declaration to the Applicant in the hearing:

• the date on which the employees approved, by ballot, the proposed agreement is 4 January 2010, however, the date on which employees were first requested to approve the agreement, by ballot, was 5 January 2010;



• the answer provided by the Applicant, to the question of when the last notice to employees regarding representation rights, is 18 January 2010 which is inconsistent with the closing of the ballot on 4 January 2010;



• the answer provided by the Applicant, to the question regarding the number of employees who cast a valid vote in relation to the proposed agreement is as follows: “None (0) of the employee (sic) to be covered by this proposed agreement have opposed it”. Clearly, the answer does not address the question posed;



• in response to the question of the number of employees who voted in support of the proposed agreement, the answer provided by the Applicant is: “All 80 or so have supported this agreement”. As I remarked to the Applicant in the hearing, in any ballot, the number who vote in the affirmative is quite specific;



• in relation to the dispute settling clause in the proposed enterprise agreement, the question in the Declaration seeks the procedure by which an independent person is appointed to resolve unresolved disputes. The Applicant, in the Declaration, referred to the clause in the proposed agreement, however, this clause does not contain any procedure for an independent person to be appointed;



• with regard to question 2.25, the Applicant is required to address the question of whether the Dispute Settlement Procedure provides for representation of employees covered by the proposed agreement. While the Applicant has responded “yes”, it is demonstrable that the answer is “no”;



• contrary to the original declaration, question 2.30 is answered in the affirmative that the proposed agreement covers shift workers, however, the following question which seeks to identify the clauses in the agreement relating to shift workers, is left blank; and finally,



• when asked, in question 3.3, whether the proposed agreement contains any terms or conditions of employment less beneficial than the comparison reference award, the Applicant has responded in the negative. In the original declaration, the Applicant responded in the affirmative. It is demonstrable that the proposed agreement contains provisions which are less beneficial than the conditions contained in the reference award.

[6] In the circumstances, I advised the Applicant, for the observations above, that I was uncomfortable attempting to remedy (if that was possible) the application as it currently existed and would dismiss the application.

[7] In conclusion, I advised the Applicant that the application had other deficiencies which needed to be addressed, and it may be advantageous, to seek advice in the preparation of a fresh application.

[8] For Fair Work Australia to approve an enterprise agreement, I must be satisfied that ss.186, 187 and 188 (as are relevant) have been met; I am not satisfied that the statutory requirements have been met, and consequently, must dismiss the application.

COMMISSIONER

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