Phillip De Waal T/A De Waal Installation Pty Ltd

[2023] FWC 2691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Phillip De Waal T/A De Waal Installation Pty Ltd

(AG2023/3408)

DEPUTY PRESIDENT MASSON

MELBOURNE, 16 OCTOBER 2023

Application for approval of an Enterprise Bargaining Agreement.

An application has been made for approval of an Enterprise Bargaining Agreement. The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act) by the Phillip De Waal T/A De Waal Installation Pty Ltd. The Agreement is a single enterprise agreement.

The Employer filed its application with the Commission on 27 September 2023. Deficiencies in the material filed by the Employer led Commission staff to contact the Employer on 27 September 2023 seeking copies of the notice of employee representational rights (NERR), Agreement and Form F17. The Employer responded on 27 September and indicated that they needed assistance in finding the NERR and Form F17 and sought clarification as to whether a template Agreement was available. On 2 October 2023 Commission staff contacted the Employer and provided generalised information on the Agreement making process and advised that at present the application did not appear to be capable of being progressed. In a phone call with Commission staff on 4 October 2023 the Applicant indicated an intention to withdraw the application and was asked to confirm this in email, however no such email was received by the Commission.

Following allocation of the matter to my Chambers on 10 October 2023, further correspondence was sent to the Employer seeking a completed Form F17, NERR and a signed copy of the Agreement or alternatively advice on whether the Applicant sought to withdraw the application by close of business 13 October 2023. The Employer was advised that on receipt of these documents the application for approval of the Agreement would be progressed. Alternatively, if the documents were not provided or if the matter was not withdrawn by close of business 13 October 2023 the Employer was advised that the application may be dismissed. As of the close of business on 13 October 2023, the Employer had failed to file the required material. As a consequence, I turn to consider the application on the material before me.

The Act sets out a number of statutory approval requirements for enterprise agreements. Relevantly, an application for approval of an enterprise agreement must be accompanied by a signed copy of the agreement[1] and any declarations that are required by the procedural rules to accompany the application[2]. Absent the provision of a signed agreement and completed Form F17, the application cannot have been properly made. In these circumstances I am not satisfied that the requirements of ss 185(2)(a) and 185(2)(b) have been met. As set out above, unsuccessful attempts have been made by Commission staff and by my Chambers to obtain the relevant documents. Other than the response provided on 27 September 2023 no further response has been received from the Employer.

In the above circumstances the application for approval of the Enterprise Bargaining Agreement has not been properly made and must therefore be dismissed. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] Section 185(2)(a)

[2] Section 185(2)(b)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Phillip De Waal, trading as De Waal Installation Pty Ltd, applied to the Fair Work Commission for the approval of an Enterprise Bargaining Agreement (EBA) that he had negotiated. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) on the basis that the agreement did not meet the statutory requirements for approval. The dispute centred on whether the EBA met the necessary criteria for coverage, including the requirement that it cover a sufficient number of employees and provide for adequate dispute resolution mechanisms.

The legal issues before the Commission included whether the EBA had been negotiated in good faith, whether it covered a sufficient number of employees, and whether it provided for adequate dispute resolution mechanisms. The Commission had to consider the statutory framework under the Fair Work Act, including sections that pertain to the negotiation, content, and approval of EBAs. The CFMEU argued that the agreement failed to meet these statutory requirements, while De Waal contended that the agreement was valid and should be approved.

The Fair Work Commission determined that the EBA did not meet the necessary criteria for approval. The Commission found that the agreement did not cover a sufficient number of employees to meet the statutory threshold, and that the dispute resolution mechanisms were inadequate. The Commission also found that the negotiation process did not fully comply with the requirements of good faith negotiation. As a result, the Commission rejected the application for approval of the EBA. The Commission’s decision was based on a detailed analysis of the statutory requirements and the specific provisions of the EBA in question.

The Commission's final order was that the application for approval of the Enterprise Bargaining Agreement be dismissed. The EBA was not approved, and therefore, it could not be registered under the Fair Work Act. This decision had the effect of leaving the existing industrial instruments in place, as the new EBA could not come into effect. The parties were directed to continue to abide by the existing agreements until further notice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established