Omya Australia Pty Limited

[2013] FWC 3338

[2013] FWC 3338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Omya Australia Pty Limited
(AG2013/1115)

COMMISSIONER RYAN MELBOURNE, 27 MAY 2013

Application for approval of the Omya Australia Pty Ltd (Geelong Plant) Enterprise Bargaining Agreement 2012.

[1] Application was made on 8 May 2013 for approval of the Omya Australia Pty Ltd (Geelong Plant) Enterprise Bargaining Agreement 2012. The application was accompanied by a Form F17, Employer’ Declaration in Support of Application for Approval of Enterprise Agreement from Mr Glen Cameron, Manager.

[2] Mr Cameron’s statutory declaration failed to fully answer question 2.6 and his answer to question 2.8 appeared improbable.

[3] Mr Cameron was invited to file a new Form F17 in which he correctly answered question 2.6 and 2.8. The questions and answers from the second F17 of Mr Cameron were as follows:

“2.6 Please specify the steps taken by the employer (including the date of each such step) to notify all relevant employees of the time and place at which the vote was to occur and the voting method to be used (s.180(3)):

Employees verbally told on 8,9/4/2013. Voted by show of hands on 11/4/2013. May 2012.

2.8 Please provide the following dates:

Date on which the last notice of representational rights was given to an employee who will be covered by the Agreement (s.181 (2)):

21/6/2012

Date on which voting for the Agreement commenced

(voting commences on the first day that an employee is

able to cast a vote- see s.l81):

11/4/2013

Date on which the Agreement was made (that is, the

date on which the voting process by which employees

approved the agreement concluded- see s.l82):

11/4/2013

[4] Question 2.6 of the Form F17 seeks information from the employer which goes to matters raised by s.180 of the Act. Relevantly, s.180(1), (3) and (4) of the Act are as follows:

“180(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

180(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

180(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).”

[5] From the answer given to question 2.8 in the Form F17 of Mr Cameron I accept that for the purpose of s.181(1) (as referred to in s.180(4)) the voting process started on 11 April 2013.

[6] The access period for the purpose of s.180(4) commenced on 4 April 2013.

[7] The requirement of s.180(3) was that the employer take all reasonable steps by no later than 4 April 2013 to notify the relevant employees of both, the time and place at which the vote will occur and the voting method that will be used.

[8] Mr Cameron’s second statutory declaration identifies that the relevant employees were verbally told on 8 and 9 April 2013 that the vote for the approval of the agreement would take place on 11 April 2013.

[9] On the evidence before the Commission it is clear that the employer did not comply with the requirement of s.180(3) of the Act.

[10] This means that the employer was not entitled to request relevant employees to vote for the agreement on 11 April 2013. The vote of employees which took place on 11 April 2013 was not valid.

[11] The application in this matter has not been validly made and I dismiss the application.

COMMISSIONER

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