Range Information systems Pty. Ltd

[2014] FWC 2466

[2014] FWC 2466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Range Information systems Pty. Ltd
(AG2014/749)

COMMISSIONER CAMBRIDGE SYDNEY, 11 APRIL 2014

Application for approval of the Enterprise Agreement for Range Information Systems Pty Limited.

[1] An application has been made for approval of an enterprise agreement known as the Enterprise Agreement for Range Information Systems Pty Limited (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Range Information systems [sic] Pty. Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 2 April 2014. The application included a Statutory Declaration of Anthony Sager made on behalf of the Employer and dated 27 March 2014 (the Declaration). The Declaration stated that the Agreement was made on 22 March 2014. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:

“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.”

[4] As can be seen from subsection 181 (2) of the Act, a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.

[5] In this instance, the Declaration stated that the date on which the last notice of representational rights was given to an employee who will be covered by the Agreement was 19/2/14. The Declaration also stated that the date on which voting for the Agreement commenced was 5/3/14. Therefore the voting for approval of the Agreement commenced on the 14th day after the date on which the last notice of representational rights was given to anemployee who would be covered by the Agreement.

[6] Consequently the Agreement does not comply with the requirements of subsection 181 (2) of the Act. The Act does not provide for the Commission to waiver or vary the time requirements of subsection 181 (2), these provisions are mandatory. The mandatory nature of these provisions is reinforced by the provisions of subsection 188 (a) of the Act.

[7] In addition, a number of other deficiencies with the application have been identified.

[8] The Declaration has not provided any information, other than the letters “N/A”, in respect to improvements and or reductions in answer to questions 3.4 and 3.6 and therefore no assessment of the Better Off Overall Test (BOOT) could be undertaken.

[9] At question 2.1, the Declaration states that the nominal expiry date of the Agreement is “30th June 2015 Clause No.28”. However, clause 32 of the Agreement indicates that the nominal expiry date is “31st December 2017”. Further, it appears that the rates contained in the Agreement are fixed for the duration of the Agreement, whatever period that may be.

[10] The Agreement is incomplete at clause 1.1. Clause 7.5 of the Agreement would seem to not satisfy the BOOT. Clause 22 of the Agreement refers to “The salaries in clause 14...”, however clause 14 deals with meal breaks. The Agreement has not been signed in accordance with the requirements established by subsection 185(5) of the Act as prescribed by Regulation 2.06A of the Fair Work Regulations 2009.

[11] Unfortunately the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application is dismissed.

COMMISSIONER

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