Regent Taxis Pty Limited T/A Gold Coast Cabs
[2011] FWA 3683
•10 JUNE 2011
[2011] FWA 3683 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Regent Taxis Pty Limited T/A Gold Coast Cabs
(AG2011/9290)
Clerical industry | |
COMMISSIONER SIMPSON | BRISBANE, 10 JUNE 2011 |
Application for approval of the Gold Coast Cabs Enterprise Agreement 2011.
[1] An application has been made for approval of an enterprise agreement known as the Gold Coast Cabs Enterprise Agreement 2011 (the Agreement) on 6 May 2011. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Regent Taxis Limited T/A Gold Coast Cabs (the Applicant). The Agreement is a single-enterprise agreement.
[2] Fair Work Australia received correspondence dated the 6 May 2011 from the Australian Services Union (ASU) setting out concerns regarding the Agreement and requesting an opportunity to be heard on those concerns.
[3] The ASU concerns included a failure by the Applicant to comply with s.173, that the employer negotiated with parties other than the appointed bargaining representative, and that the Agreement was not lodged within 14 days after it was made.
[4] I listed the matter for hearing on Tuesday 31 May 2011 where the ASU raised a series of additional matters going to the question of whether the Agreement satisfied the Better off Overall Test.
[5] It was agreed between the parties that the employer agreed to bargain either in late December 2009 or early 2010. 1 The Applicant sent out a memorandum to all staff on 14 January 2010.2 It was confirmed by the Applicant during the hearing that it understood the memorandum sent to staff with an attachment on 14 January 2010 was the notice of employee representational rights 3 for the purposes of s.173.
[6] Section 174 of the Fair Work Act 2009 sets out what must be contained in a notice of employee representational rights. It says as follows;
174 Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low-paid authorisation is in operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).
Regulations may prescribe additional content and form requirements etc.
(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.
[7] On having read the memorandum sent to all staff on 14 January 2010 and the attachment which are together purported to be a notice of employee representational rights it is clear to me that neither document meets the requirements of s.174.
[8] The form of the notice is prescribed in the Fair Work Regulations 2009 through Regulation 2.05 and Schedule 2.1. As the memorandum fails to provide the information as required by the prescribed notice I cannot be satisfied that employees have genuinely agreed to the Agreement as required by s.188 as s.181 has not been satisfied.
[9] On a separate matter it also became clear during the hearing on 31 May that at no stage has the Agreement been signed, either by the Applicant or by a bargaining representative, either before filing or since the filing of the Agreement. This was made clear by Mr O’Riordan on behalf of the Applicant. 4 Therefore the requirements of s.185(2), s.185(5) and regulation 2.06A are also not met.
[10] At the hearing I advised the parties I would determine these threshold issues before considering other matters raised by the ASU. I have determined that the Agreement cannot be approved for the reasons set out above and therefore do not need to consider the other matters raised by the ASU. I dismiss the application.
COMMISSIONER
1 Transcript PN 14, PN 74 - 80
2 Transcript PN 77
3 Transcript PN 87 -96
4 Transcript PN 40 - 42
Printed by authority of the Commonwealth Government Printer
<Price code A, PR510422>
3
0
0