Rawnsley Park Tourism Pty. Ltd. T/A Rawnsley Park Station
[2010] FWA 531
•29 JANUARY 2010
[2010] FWA 531 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/16988)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 29 JANUARY 2010 |
Rawnsley Park Station Tourism Workers Enterprise Agreement.
[1] On 21 October 2009 Rawnsley Park Tourism Pty Ltd (Rawnsley) lodged an application for approval of the Rawnsley Park Station Tourism Workers Enterprise Agreement pursuant to section 185 of the Fair Work Act 2009 (the Act).
[2] On 2 December 2009 I issued preliminary findings in which I detailed a series of questions about the agreement and the process followed to make that agreement. These preliminary findings provided an opportunity for Rawnsley to request a hearing to allow further consideration of these matters or to provide written advice with respect to these issues.
[3] On 7 December 2009 Rawnsley provided written information. Whilst this information addressed in part the matters raised with respect to the content of the agreement, it did not provide sufficient information to demonstrate that the agreement was reached through a process consistent with that set out in sections 180 and 181 of the Act. As a consequence, the application was listed for a hearing on 23 December 2009. This hearing was conducted by telephone. Mr Smith represented Rawnsley and Ms Callaghan, an employee representative, was also present. This hearing also addressed the agreement making process and various issues associated with the content of the agreement.
[4] For the reasons set out below it is not necessary that I deal with the agreement content issues in this decision. Suffice to say that these issues are capable of being addressed by undertakings given pursuant to section 190 of the Act.
[5] However, issues associated with the process whereby the agreement was made are not capable of being addressed by undertakings and the Act requires that I be satisfied that the process followed was consistent with sections 180 and 181. Notwithstanding that I have noted the information provided by Mr Smith on 7 December 2009, at the hearing on 23 December 2009 and, subsequent to that hearing, on 30 December 2009, I am not satisfied that a notice of representational rights was provided to employees to be covered by the agreement at least 21 days prior to the agreement being made.
[6] The requirement to provide a Notice of employee representational rights is set out in section 173(1) of the Act in the following terms:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.”
[7] Section 174 specifies the content of this notice. I have attached a copy of the prescribed notice which is contained at Schedule 2.1 of the Fair Work Regulations. The issuing to employees of this notice of employee representational rights is fundamental to the agreement making process in that it establishes to employees that the employer intends to negotiate an agreement and that employees have representational rights with respect to this negotiation process.
[8] In this situation I am not satisfied that the requisite Notice of employee representational rights was in fact issued such that the agreement could be made in a form which would allow Fair Work Australia to be satisfied that the correct process had been followed.
[9] I am in no doubt that this reflects an administrative oversight and that Rawnsley was, and has been genuinely endeavouring to reach an agreement with its employees. However, because I am unable to be satisfied that a Notice of employee representative rights was in fact issued, the application for approval of the agreement is refused.
[10] Rawnsley will need to repeat the agreement making process. This should be commenced by issuing Notices of employee representational rights and the subsequent negotiation of an agreement proposal. As the traditional state-based award arrangements have now been replaced by the new Modern Awards which form the basis for future agreement approval tests, I recommend that Rawnsley ensures that any agreement can be shown to provide employment benefits are better overall for employees than the relevant Modern Award. Rawnsley may wish to seek advice in this respect.
[11] For the reasons set out above the application is dismissed.
SENIOR DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, PR992997>
0
0
0