Resolve FM Pty Ltd
[2012] FWA 7294
•24 AUGUST 2012
[2012] FWA 7294 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Resolve FM Pty Ltd
(AG2012/7330)
COMMISSIONER GOOLEY | MELBOURNE, 24 AUGUST 2012 |
[1] On 23 July 2012, Resolve FM Pty Ltd (the Applicant) lodged an application for approval of the resolve FM Pty Ltd Shepparton Department of Human Services Victoria Enterprise Agreement (All Trades) 2012-2014 (the Agreement).
[2] In the employer declaration filed with the application, the Applicant stated that the last notice of representational rights was given to employees on 2 July 2012 and voting commenced on 23 July 2012.
[3] Section 181 of the Fair Work Act 2009 (the Act) provides 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] On 7 August 2012 I advised the Applicant that as the voting commenced earlier than permitted by section 181 of the Act, the Agreement could not be approved. I also advised the Applicant of a number of concerns I had about the Agreement.
[5] In Nepero Pty Ltd t/a Morgan’s Super IGA [2009] FWA 1712, Commissioner Whelan said:
“[11] Section 181 provides that an employer may request the employees to approve the agreement by voting for it. Section 181(2) provides that the request ‘must not be made until at least 21 days after the day on which the last notice under section 173(1)’ was given.
[12] In Alphington Aged Care and Sisters of St Joseph Health Care Services (Vic) t/as Mary Mackillop Aged Care 2, the notice was given on 6 July 2009 and the vote was taken on 27 July 2009. In determining that the application failed to meet the requirements of section 181(2), I referred to a decision of a Full Bench of the Australian Industrial Relations Commission in Re: White’s Discounts Pty Ltd t/as Everybody’s IGA Everyday and Broken Hill Foodland.3
[13] While that case dealt with the application of section 170LK(2) which required that employees were to have ‘at least 14 days notice’, in writing, of an employer’s intention to make an agreement, the principles to be applied are the same. The Full Bench held that the provisions of section 36(1) of the Acts Interpretation Act applied, and as the vote in that case was taken on the 14th day, the requirements of the relevant legislation were not met. Section 36(1) states:
‘Where in an Act any period of time, dating from a given day, act, or event is prescribed or allowed for any purpose, the time shall, unless the contrary appears to be reckoned exclusive of such day or such act or event’.
[14] A vote taken on the 21st day after the day on which the notice under section 173(1) was given, does not meet the requirements of section 181(2).”
[6] The application was listed for hearing on 17 August 2012.
[7] At the hearing Mr Mark Ghilardi, the National Business Services Manager, appeared for the Applicant.
[8] Mr Ghilardi submitted that he had miscounted the 21 day period.
[9] Section 186 of the Act relevantly provides as follows:
“186 When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.”
[10] Section 188 of the Act provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[11] As voting commenced earlier than permitted by section 181 of the Act, the Agreement cannot be approved and the application is dismissed.
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