Spear & Jackson (Aust) Pty Ltd T/A Spear & Jackson Pty Ltd

[2023] FWC 2458

[2023] FWC 2458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Spear & Jackson (Aust) Pty Ltd T/A Spear & Jackson Pty Ltd

(AG2023/3178)

DEPUTY PRESIDENT MASSON MELBOURNE, 22 SEPTEMBER 2023

Application for approval of the Spear & Jackson (Australia) Pty Ltd and United Workers Union Agreement 2021-2024.

1. An application has been made for approval of the Spear & Jackson (Australia) Pty Ltd and United Workers Union Agreement 2021-2024 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act) by Spear & Jackson (Aust) Pty Ltd T/A Spear & Jackson Pty Ltd. The Agreement is a single enterprise agreement.

1. Spear & Jackson Pty Ltd (the Employer) filed its application with the Commission on 11 September 2023. Deficiencies in the material filed by the Employer led Commission staff to contact the Employer on 12, 15 & 18 September 2023 seeking the Form F17, notice of employee representational rights (NERR) and a fully signed copy of the Agreement. On 18 September 2023 the employer responded by email and filed a copy of the Agreement signed by the Employer, however it did not provide the other documents requested. Commission staff attempted to contact the employer again on 19 September seeking copies of the other documents requested.

1. Following allocation of the matter to my Chambers on 19 September 2023, correspondence was sent to the Employer again seeking a completed Form F17, NERR and a fully signed copy of the Agreement signed by both the Employer and one representative of employees covered by the Agreement. The Employer was advised that on receipt of these documents the application for approval of the Agreement would be progressed. Alternatively, if the documents were not provided by close of business 21 September 2023 the Employer was advised that the application would be dismissed.

1. The Employer did not provide a response by the close of business 21 September 2023. In the absence of a response to the matters raised by the Commission I turn to consider the application on the material before me.

1. The Act sets out a number of statutory approval requirements for enterprise agreements. Relevantly, an application for approval of an enterprise agreement must be accompanied by a signed copy of the agreement[1] and any declarations that are required by the procedural rules to accompany the application[2]. Absent the provision of a signed agreement and completed Form F17, the application cannot have been properly made. In these circumstances I am not satisfied that the requirements of ss 185(2)(a) and 185(2)(b) have been met. As set out above, unsuccessful attempts have been made by Commission staff and by my Chambers to engage the Employer in relation to the application. Other than the response provided on 18 September 2023 no further response has been received from the Employer.

1. In the above circumstances the application for approval of the Spear & Jackson (Australia) Pty Ltd and United Workers Union Agreement 2021-2024 has not been properly made and must therefore be dismissed. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] Section 185(2)(a)

[2] Section 185(2)(b)

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