Pacific NonWovens (Australia) Pty Ltd T/A Pacific NonWovens (Australia)

[2015] FWC 27

[2015] FWC 27

The attached document replaces the document previously issued with the above code on 7 January 2015 and is amended by the paragraph numbering being re-ordered sequentially.

Associate to Commissioner Ryan

Dated: 8 January 2015

[2015] FWC 27

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Pacific NonWovens (Australia) Pty Ltd T/A Pacific NonWovens (Australia)
(AG2014/10514)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 7 JANUARY 2015

Application for approval of the Pacific NonWovens 79 Premier Dr Campbellfield and 202 Settlement Rd Thomastown Site Enterprise Agreement 2014.

[1] An application has been made by Pacific NonWovens (Australia) Pty Ltd for approval of the Pacific NonWovens 79 Premier Dr Campbellfield and 202 Settlement Rd Thomastown Site Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC 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 the FWC considers it fair to extend that period—within such further period as the FWC 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.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[4] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the Act as it did not include an address of each of the employer and employee representatives who signed the agreement as required by Regulation 2.06A.

[5] As the requirements of s.185(2)(b) have not been complied with the application is not a valid application. The application is therefore dismissed.

Observations

[6] I make the following observations in relation to this application. These observations are not part of the decision to dismiss the application in this matter but are made to assist the parties if they wish to make an enterprise agreement and seek to have it approved by the Commission.

[7] The application was accompanied with a Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement sworn by Mr Ronald de Jager. The information completed by Mr de Jager in response to question 2.8 reveals that the last notice of representational rights was given to an employee on 5 December 2014 and that the date on which voting commenced was 17 December 2014. If these dates are correct, it is apparent that fewer than 21 days passed between the giving of the notice of representational rights (s.173(1)) and the employees being asked to approve the agreement (s.181(2)), in which case the agreement could not be approved given the need for genuine agreement by employees (s.186(2)), and given that genuine approval (s.188(a)(ii)) requires compliance with s.181(2) of the Act.

[8] The Notice of Employee representational rights issued in this matter refers to a different group of employees than are sought to be covered by the Agreement.

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