Reliable Enterprises Pty Ltd T/A Southern Starr Fire Protection

[2012] FWA 2950

[2012] FWA 2950

FAIR WORK AUSTRALIA

DECISION

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

Reliable Enterprises Pty Ltd T/A Southern Starr Fire Protection
(AG2012/4002)

COMMISSIONER ROE MELBOURNE, 4 APRIL 2012

Reliable Enterprises Northern Territory Collective Agreement 2012 - application for approval dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Reliable Enterprises Northern Territory Collective Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Reliable Enterprises Northern Territory Trading as Southern Starr Fire Protection (the Applicant). The Applicant says that there were no bargaining representatives. The agreement is a single-enterprise agreement.

[2] The Application was lodged on 16 March 2012. The F17 Form provided by the Applicant stated that there were 5 persons who will be covered by the Agreement all of whom had voted in favour of the Agreement.

[3] On 22 March 2012 I requested my Associate write to the employer as follows:

“In response to Question 2.4 on the F17 Statutory Declaration, you have stated that there was a discussion about the process for bargaining for the next agreement, however, there is no reference to the issuing of the Notice of Employee Representational Rights and there is no copy of the notice attached to the F17 Form as required by Question 2.4. Furthermore at question 2.8 you advise that the date on which the last notice was given to employees was 12 March 2012 which is the same date as the date of the vote on the proposed Agreement. Under the Fair Work Act 2009 (FW Act) there is a mandatory requirement that notice be given at least 21 days prior to the voting on the Agreement and the Commissioner does not have the power to waive this requirement.  If you have further information you wish to provide in respect to this matter please do so by 27 March 2012.”

[4] I also detailed a number of other problems with the content of the Agreement which I indicated could be rectified by the provision of appropriate undertakings.

[5] The employer responded on 27 March 2012 and my Associate replied further on the 28 March 2012 as follows:

“The Commissioner notes your statement that:

“Just to clarify an item as attached, as this may not read correct, but the initial discussion of the previously issued document was discussed at the tool box meeting for comment, this may read that this was also the date the document was issued, this was 12 February for the required min 21 days.”

The Commissioner understands this to mean that a version of the Agreement was first issued on 12 February 2012. However, the requirement of the legislation is that all reasonable steps must be taken to give the notice of representational rights as specified in the Regulations to each employee who will be covered by the proposed agreement. A copy of the notice which was distributed should be attached to the F17 Form. It therefore appears to the Commissioner that the notice of representational rights was not issued to all employees 21 days prior to the commencement of voting on the Agreement and therefore the Agreement cannot be approved. If this is correct then the Commissioner will issue a decision rejecting the Application. You would then need to issue the appropriate notice and then provide opportunity for negotiation about the Agreement, circulate the proposed Agreement and meet the other requirements of the legislation during the ensuing 21 day period prior to a vote. You could also take the opportunity to correct the other issues raised in respect to the proposed Agreement document. For your information a copy of the form for the notice is attached to this correspondence.

The Commissioner notes the changes you have proposed to be made to the Agreement in response to the correspondence of 22 March 2012. Under the Act the way in which these changes are made is through the provision of an undertaking signed by the employer however this is not relevant given the point raised earlier. To assist with the future process it is noted that the changes offered are largely consistent with the suggestions made in our correspondence of 22 March 2012 except that:

• The heading of Clause 6 should also be changed to “relationship between the national employment standards and this agreement.”



• In respect to Clause 12 (i) it should read “If an employee is required to work shift work this will not extend for a period of longer than 4 weeks in any 12 month period.”



• In clause 14 the provision for cashing out annual leave is not consistent with the current legislation. The following sentence would need to be added. “The employer and the employee must not agree to the employee cashing out an amount of paid leave if the agreement would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.”

If you wish to make any further submission in respect to the matters raised in this correspondence and particularly in relation to the preliminary conclusion reached by the Commissioner that the required notice of representational rights was not issued in the required timeframe then please do so by 2 April 2012.

In the event no further submission is received by that date the Commissioner will issue a decision rejecting the application to approve the Agreement. In the event that further submission is received by that date the Commissioner will list the matter for hearing at 11 am Melbourne time and 10.30 am Darwin time on Thursday 5 April 2012.”

[6] No further submission was received by the Respondent by 2 April 2012. I have therefore concluded that the notice of representational rights was not issued to employees and if there was a notice issued it was not in the required time frame. I therefore conclude that the requirements of Sections 186 and 188 have not been met and I cannot approve the Agreement.

[7] The Application for approval of the Agreement is dismissed.

COMMISSIONER

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