SR & AV Nixon Pty Ltd
[2010] FWA 772
•5 FEBRUARY 2010
[2010] FWA 772 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/24033)
COMMISSIONER LEWIN | MELBOURNE, 5 FEBRUARY 2010 |
Echuca Kingpin Bowl Agreement.
[1] On 30 December 2009, SR & AV Nixon Pty Ltd lodged an application in Fair Work Australia for the approval of an enterprise agreement under s.185 of the Fair Work Act 2009 (the Act). An employer’s declaration in support of the application was provided with the application. The declaration states that the Agreement was made on 16 December 2009.
[2] Section 186 of the Act requires that in order to approve an enterprise agreement, (not a greenfields agreement), an agreement must have been genuinely agreed to by the relevant employees.
[3] Section 188 of the Act provides that for an enterprise agreement to be approved, Fair Work Australia must be satisfied that the agreement has been genuinely agreed to by the relevant employees having regard to specific statutory requirements. The provisions of s.188(a)(ii) of the Act are set out below:
“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:
(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);
…
[4] Section 181 of the Act is in the following terms:
“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.
[5] At question 2.6 of the Form 17—Employer’s Declaration in Support for Approval of Enterprise Agreement (the Declaration), filed in the Tribunal on 30 December 2009, the Company declared that employer first requested that the employees approved the agreement by voting for iton 16 December 2009.
[6] Section 173 of the Fair Work Act 2009 (the Act) requires that an employer who will be covered by a proposed enterprise agreement must take all reasonable steps to notify employees who will be covered by the agreement of the right to be represented by a bargaining agent as will be observed above, by force of s.181(2) of the Act, a request to vote cannot be effective for approval purposes where the vote occurs less than 21 days after the last notice of representational rights is given. At 2.7 of the declaration, the Company declared that the employer provided the last notice of the employees’ representational rights pursuant to s.173(1) of the Act on 26 November 2009. The Agreement was made on 16 December, 20 days after than notice.
[7] On the material before me, I cannot be satisfied that the provisions of sections 188(1)(a)(ii) and 181(2) of the Act have been met. The statutory requirements referred to above are mandatory. There is no discretion vested in Fair Work Australia to approve an agreement if those requirements have not been met.
[8] For the reasons stated the Agreement cannot be approved.
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