Pro Sanding Pty Ltd
[2010] FWA 4129
•15 JUNE 2010
[2010] FWA 4129 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
Pro Sanding Pty Ltd
(AG2010/701)
Building, metal and civil construction industries | |
COMMISSIONER RYAN | MELBOURNE, 15 JUNE 2010 |
Application for approval of the Pro Sanding EBA.
[1] An application has been made for approval of an enterprise agreement known as the Pro Sanding Pty Ltd Enterprise Bargaining Agreement (the agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by HR Coach Services, as bargaining representative for Pro Sanding Pty Ltd. The agreement is a single-enterprise agreement applying to all employees of Pro Sanding Pty Ltd (the Employer).
[2] The application was filed with Fair Work Australia on 24 March 2010.
[3] Following an examination of the documents filed in this application, I wrote to Mr Michael Corrigan of HR Coach Employee Services, on 8 April 2010 detailing the concerns I had with the application.
[4] On 29 April 2010, in the absence of any response to my correspondence, I listed this matter for a hearing before me on 13 May 2010.
[5] Contact was made with Mr Corrigan on 10 May 2010 to confirm he had received the Notice of Listing and that he would be attending. In this telephone conversation Mr Corrigan acknowledged receipt of the Notice of Listing and indicated that he had responded in writing to my concerns “some weeks earlier” by email. On that basis the hearing was vacated so that I could consider Mr Corrigan’s response.
[6] A check of the Chambers email in-box revealed that no email had been received from Mr Corrigan and an email was sent to Mr Corrigan to that effect on 11 May 2010. Mr Corrigan replied to that email on 17 May 2010 attaching a document which set out his responses to my letter of 8 April 2010. Mr Corrigan did not send any proof of his response having been emailed “some weeks earlier” as claimed.
[7] The responses provided by Mr Corrigan on behalf of the employer did not address all of my concerns nor did they satisfy those concerns which were addressed. Therefore on 21 May 2010 I emailed Mr Corrigan as follows:
“I draw your attention to s.190 of the Act.
Before determining the application for approval of the abovementioned agreement I intend to provide the employer with an opportunity to offer an undertaking or undertakings which meet the concerns raised in my letter of 8th April 2010.
Should the employer intend to offer any undertakings such undertakings should be filed with Fair Work Australia by close of business on Friday 28th May 2010.
[8] Mr Corrigan responded by email on 28 May 2010 as follows:
“I would be happy to offer an undertaking in regards to the Pro Sanding EBA.
Would you like me to formulate the undertakings or do you have suggestions?
If HR Coach Employee Services is to formulate I would seek an extension until 9am Monday 31st May 2010.
Thanking you for your assistance.”
[9] Mr Corrigan was advised by email on 1 June 2010 that he should formulate the undertakings and that he should do so by close of business on 2 June 2010. No further communication has been received from Mr Corrigan as bargaining representative of the employer.
[10] No undertakings have been offered by Mr Corrigan on behalf of the employer and therefore my concerns remained unsatisfied.
[11] Having considered the all of the submissions made on behalf of the employer in this matter and the documentation in support of the application I am not satisfied that the agreement passes the better off overall test. I have identified my concerns in relation to the better off overall test to the employers bargaining representative and I have given the employer, through the employer’s bargaining representative, an opportunity to give undertakings that would meet the requirements of s.190 of the Act. In the absence of any undertakings being offered by the employer my concerns that the agreement does not pass the better off overall test remain.
[12] S.186(1) requires that Fair Work Australia must approve an agreement if the requirements of s.186 are met. S.186(2)(d) requires that Fair Work Australia must be satisfied that the agreement passes the better off overall test.
[13] In this matter I am not satisfied as to the matter identified in s.186(2)(d) and therefore I must not approve the agreement.
[14] The application is dismissed.
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