Serco Sodexo Defence Services Pty Ltd
[2009] FWA 421
•30 SEPTEMBER 2009
[2009] FWA 421 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/12651)
SERCO SODEXO DEFENCE SERVICES PTY LTD TRANSPORT REFUELLER NSW AND ACT COLLECTIVE AGREEMENT 2009
Private transport industry | |
COMMISSIONER LEWIN | MELBOURNE, 30 SEPTEMBER 2009 |
Application for approval of the Serco Sodexo Defence Services Pty Ltd Transport Refueller NSW and ACT Collective Agreement 2009.
[1] An application has been made for approval of an enterprise agreement known as the Serco Sodexo Defence Services Pty Ltd Transport Refueller NSW and ACT Collective Agreement 2009 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Serco Sodexo Defence Services Pty Ltd. The agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] Section 185(3) of the Act has not been satisfied as the application for approval of the Agreement was lodged more than 14 days after the Agreement was made. However, I would extend the time for lodgement of the application as sought by the applicant.
[4] I am not satisfied that each of the requirements of s.186 and s.188 as are relevant to this application for approval have been met.
[5] An important and fundamental requirement for the approval of an enterprise agreement is that the employees whose employment is to be covered by the Agreement must have genuinely agreed to the terms of the Agreement. This is a mandatory statutory requirement and without this requirement being fulfilled an Enterprise Agreement cannot be approved. The relevant statutory provision is set out below.
“186 When FWA must approve an enterprise agreement—general requirements
…
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; …”
[6] Section 188 of the Act provides the requirements necessary for genuine agreement by the relevant employees.
“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.”
[7] It will be noted that s.188(a)(ii) requires compliance with the requirements of section 181(2). Section 181 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.”
[8] Section 181(2) refers to a requirement under section 173 that an employer that will be covered by a proposed enterprise agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement; and is employed at the notification time for the agreement. The relevant effect of the appropriate statutory provision is that the employer cannot request the employees to be covered by the terms of the agreement to vote on approval of the agreement until 21 days after the last notice prescribed by section 173 (1) is given.
[9] On the material before me, completed on behalf of Serco Sodexo Defence Services Pty Ltd, the last notice of representational rights was issued on 10 August 2009 and the Agreement was made 2 on 18 August 2009. While there is some information provided by the applicant which could invoke the operation of s.173(4), which would have the effect of waiving this requirement, the information is highly uncertain, ambiguous and would seem contradictory.
[10] The period between 10 August and 18 August is a period of less than 21 days. Therefore on what is before me a mandatory statutory requirement has evidently not been met. In these circumstances the Agreement cannot be approved.
1 Item 2, Part 1, of Schedule 2.
2 S.182(1)
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