Sorted Events Pty Ltd t/as Mojito Joe's

[2013] FWC 3396

[2013] FWC 3396

FAIR WORK COMMISSION

DECISION

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

Sorted Events Pty Ltd t/as Mojito Joe's
(AG2013/6389)

DEPUTY PRESIDENT SAMS SYDNEY, 29 MAY 2013

Application for approval of the Sorted Events PTY LTD (T/A Mojito Joe's) Enterprise Agreement 2013-2018 - seven days between notice of representational rights and commencement of voting to approve agreement - statutory time period not met - no discretion to waive notice period - application dismissed.

[1] This is an application filed by Sorted Events Pty Ltd t/as Mojito Joe’s (the ‘applicant’) pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’) seeking the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement known as the Sorted Events PTY LTD (T/A Mojito Joe’s) Enterprise Agreement 2013-2018. In the Employer’s Declaration in support of the application (Form F17), Mr J Hartley, Director stated that the employees were last notified of their representational rights on 4 March 2013 and that voting for the Agreement’s approval commenced on 11 March 2013.

[2] For a valid application to be made pursuant to s 185 of the Act, it is a statutory prerequisite that an enterprise agreement be ‘made’ under s 185(1). That section is expressed as follows:

‘185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.’

[3] s 182(1) sets out the circumstances in which a single-enterprise agreement is ‘made’:

‘182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.’

[4] s 181 provides that the employer may request that employees approve a proposed enterprise agreement subject to certain conditions. It is expressed 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 [emphasis added].’

[5] s 181(2) is expressed in mandatory terms. Accordingly, the request made by the applicant for its employees to approve the Agreement by way of a vote prior to the expiration of the statutory time period of 21 days, is not permissible. It follows that the Agreement cannot be said to have been ‘made’ under s 182(1) and that the Commission has no jurisdiction to consider the application under s 185. There is no discretion available to the Commission to waive the requirements of s 181(2) of the Act and the application cannot proceed in its present form.

[6] Nevertheless, I listed the application for hearing on 23 May 2013, as I had other concerns about the Agreement, particularly in respect to the Better Off Overall Test. The applicant failed to attend and did not communicate with my chambers prior to the date of the hearing. On the same day, my Associate communicated with Ms K Taylor to advise that the flaw identified above was fatal to the application. Ms Taylor was listed as a contact for the applicant on the Application for Approval of Enterprise Agreement (Form F16). She explained that she had previously worked for the applicant at the time that the application had been lodged, but no longer worked for the applicant. My Associate, also on the same day, communicated with Mr N Weisbaum, the current General Manager of the applicant, to advise that the flaw identified above was fatal to the application. Neither Ms Taylor nor Mr Weisbaum disputed the accuracy of the information provided in the Form F17 and did not otherwise contest the application being dismissed.

[7] Accordingly, pursuant to s 587(1)(a) of the Act, I order that application AG2013/6389 be dismissed.

DEPUTY PRESIDENT

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