Primal Electrical Pty Ltd

[2019] FWC 118

[2019] FWC 118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Primal Electrical Pty Ltd
(AG2018/3856)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 10 JANUARY 2019

Application for approval of the Full Time (Award) Enterprise Bargaining Agreement- Dismissed

[1] An application has been made by Primal Electrical Pty Ltd (the Applicant) for approval of an enterprise agreement titled the Full Time (Award) Enterprise Bargaining Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The primary activity of the Applicant is in the Electrical Contractor industry. Employees whose employment is covered by the Agreement perform a work that is covered by the Electronic, Electrical and Communications Award 2010 (the Award). This is the relevant modern award for the purposes of the ‘better off overall test’ (BOOT) in s.193 of the Act.

Background

[3] The application was lodged with the Fair Work Commission (the Commission) on 14 August 2018. The following documents were received:

•  Form F16;

•  Form F17; and

•  A copy of the Agreement.

[4] The application was absent a copy of the Notice of Employee Representational Rights (the Notice). On 16 August 2018, an email was sent to Ms Sharee Lutzke of the Applicant requesting a copy the Notice.

[5] On 4 September 2018, Ms Lutzke emailed the Commission a copy of the Notice.

[6] On 15 October 2018, an email was sent to Ms Lutzke raising a number of concerns in relation to the application for approval of the Agreement. The following concerns were raised in relation to the pre-approval requirements set out in s.180 of the Act;

1. The material filed does not appear to show that the employer has taken all reasonable steps to explain the terms and effect of the Agreement;

2. The Agreement contains an assignment clause;

3. The Agreement states the governing law is Queensland rather than Commonwealth Legislation;

4. The Agreement appears to be in the form of an individual contract;

5. The material filed does not make it clear that employees were provided with a copy of the Agreement and all industrial instruments referred to within the Agreement during bargaining;

6. The material filed explains that employees received an email which contained all necessary details of the vote however, this email was not provided; and

7. The material filed provides inconsistent numbers of how many employees voted on the Agreement.

[7] On 15 August 2018, Ms Lutzke provided submissions in response to the pre-approval concerns as follows:

•  The initial template for the Agreement was the employment contract between the Applicant and its employees, which was explained to employees and they were satisfied with it being included in the Agreement;

•  The employees had the conditions explained when they first signed their contracts and at a meeting, and employees were asked if they wanted add or remove clauses;

•  The employees were informed of what an Agreement was and how it was different to an individual contract. The employees were satisfied with their original employment terms to form the basis of the Agreement;

•  Clauses 24 (the assignment clause) and 25 (the governing law clause) should have been removed from the Agreement and the Applicant was happy to have them removed;

•  The email containing the vote information was an invitation for a face to face meeting. At the face to face meeting, the employees were given all relevant information;

•  The result of the vote was 4 votes in favour of approval. At the time of voting, there was an additional apprentice (who was employed by AllTradesQLD) whom was about to complete his apprenticeship and be offered a full role with the Applicant. Because of his future involvement with the Applicant, he was invited to be involved in the discussion and decision making process. This employee is now a full time staff member of the Applicant who will be covered by the Agreement.

[8] On 29 October 2018, an email to Ms Lutzke advising that I did not consider her responses to have resolved my concerns, particularly in relation to explanation provided to the employees about the Agreement and the voting details. Ms Lutzke was further advised that I did not consider the Agreement capable of being approved. The Applicant was invited to request for the application to be heard or alternatively, the Applicant was advised that it may wish to withdraw the application. A response to this email was requested as soon as possible, but by no later than 1 November 2018.

Absence of response

[9] On 14 November 2018, sent an email was sent to Ms Lutzke seeking a response by 16 November 2018 as no response had been provided.

[10] On 20 November 2018, another email was sent to Ms Lutzke seeking a response by 21 November 2018, noting that in an absence of a response being provided, the application may be determined based on the material currently filed.

[11] On 3 December 2018, a staff member of the Commission telephoned Ms Lutzke to confirm the previous emails sent to the Applicant had been received. Ms Lutzke stated she no longer worked for the Applicant and provided the contact number for Mr Mike Daley, the Director of the Applicant.

[12] On 3 December 2018, the staff member of the Commission telephoned Mr Daley and left a message for him to return the call in relation to the application.

[13] On 4 December 2018, as no response had been provided to previous communications, an email was sent to the Applicant’s only available email address, seeking a response by close of business 5 December 2018. This email noted that Ms Lutzke had advised that she no longer worked for the Applicant, and also noted the voice message left for Mr Daley on 3 December 2018. The email stated that in the absence of a response, the application may be determined on the basis of the material currently before the Commission.

[14] On 5 December 2018, a staff member of the Commission telephoned Mr Daley. As he did not answer a further voice message was left requesting he return the call in relation to the Agreement.

[15] On 6 December 2018, Mr Daley telephoned the Commission and requested that all previous emails relating to the Agreement be forwarded to his email address. Mr Daley stated that he would look over the correspondence and provide a response. Immediately after the phone call, all previous correspondence was sent to Mr Daley and a response was sought by 11 December 2018.

[16] On 17 December 2018, an email was sent to Mr Daley seeking a response to be provided by 18 December 2018, as no further communication had been received. This email advised that I intended to determine the matter on the material before me should a response not be received by 18 December 2018. The Applicant has not provided any response as at the date of this decision.

Conclusion

[17] Based on the materials provided, I am not satisfied that the statutory requirements of the Act have been met. Specifically, I am not satisfied that the Agreement passes the pre-approval requirements set out in s.180 of the Act. Consequently I am not satisfied the Agreement has been genuinely agreed to by the employees covered by the Agreement.

[18] The application for approval of the Agreement is dismissed.

DEPUTY PRESIDENT

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