OzTenpin Epping Pty Ltd T/A OzTenpin Epping
[2010] FWA 766
•5 FEBRUARY 2010
[2010] FWA 766 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/3769)
COMMISSIONER LEWIN | MELBOURNE, 5 FEBRUARY 2010 |
Oz Tenpin Epping Enterprise Agreement.
[1] On 4 January 2010, OzTenpin Epping Pty Ltd T/A OzTenpin Epping lodged an application in Fair Work Australia for the approval of the Oz Tenpin Epping Enterprise Agreement (the Agreement). An employer’s declaration in support of the application was provided with the application.
[2] An application for approval of an enterprise agreement must be lodged within 14 days of the Agreement being made pursuant to s.185(3)(a) of the Fair Work Act 2009 (the Act). The declaration states that the Agreement was made on 19 December 2009. The application was lodged in the Tribunal on 4 January 2010, 16 days after the Agreement was made. However, the application can be accepted out of time if the Tribunal exercises a discretionary power pursuant to s.185(3)(b) of the Act to do so.
[3] The extent of the delay in filing the application in this matter would not normally, of itself, be fatal to acceptance out of time. However, there are other significant considerations which are set out below, which compel me to the conclusion that the application should not be accepted out of time.
[4] Section 186 of the Act requires that in order to approve an enterprise agreement, (not a greenfields agreement), an agreement must have been genuinely agreed to by the relevant employees.
[5] Section 188 of the Act provides that for an enterprise agreement to be approved, Fair Work Australia must be satisfied that the agreement has been genuinely agreed to by the relevant employees having regard to specific statutory requirements. The provisions of s.188(a)(ii) as set out below:
“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given);
…
[6] Section 181 is in the following terms:
“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.
[7] At question 2.6 of the declaration, filed in the Tribunal on 4 January 2010, the Company declared that employer first requested that the employees approve the agreement by voting for iton 19 December 2009.
[8] Section 173 of the Fair Work Act 2009 (the Act) requires that an employer who will be covered by a proposed enterprise agreement must take all reasonable steps to notify employees who will be covered by the agreement of the right to be represented by a bargaining agent as will be observed above. By force of s.181(2) of the Act, a request to vote cannot be effective for approval purposes where the vote occurs less than 21 days after the last notice of representational rights is given. At 2.7 of the declaration, the Company declared that the employer provided the last notice of the employees’ representational rights pursuant to s.173(1) of the Act on 19 December 2009. The Agreement was made on 19 December 2009, the same day as that notice.
[9] On the material before me, I cannot be satisfied that the provisions of sections 188(1)(a)(ii) and 181(2) of the Act have been met. The statutory requirements referred to above are mandatory. There is no discretion vested in Fair Work Australia to approve an agreement if those requirements have not been met.
[10] For the reasons stated the Agreement cannot be approved. Accordingly, there is no purpose in accepting the application for approval out of time.
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