Sri DashMesh Pty Ltd

[2010] FWA 9158

[2010] FWA 9158

FAIR WORK AUSTRALIA

DECISION

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

Sri DashMesh Pty Ltd
(AG2009/14475)

Wholesale and retail trade
COMMISSIONER CRIBB	MELBOURNE, 29 NOVEMBER 2010

Application for approval of the Sri Dashmesh Pty Ltd Employee Enterprise Agreement - application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Sri Dashmesh Pty Ltd Employee Enterprise Agreement (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Sri DashMesh Pty Ltd (the company). The Agreement is a single-enterprise agreement.

[2] On 28 June 2010, the Tribunal wrote to Sri DashMesh Pty Ltd with a number of queries regarding the Agreement. No response was received to that letter, nor to further correspondence sent to the company on 16 November 2010 and 25 November 2010.

[3] In assessing the requirements of ss.186, 187 and 188 of the Act for approval of the Agreement, I am unable to determine whether the wage rates in Attachments A and B pass the no disadvantage test. This is despite initially requesting further information regarding the wage rates, from the company, on 28 June 2010.

[4] With respect to clause 3 (Expiry Date) and clause 6 (Dispute Resolution), there has been no response regarding the specific nominal expiry date nor regarding the absence of reference to disputes about any matters arising under the Agreement or in relation to the NES or the provision for the representation of employees during the process.

[5] The company was provided with the opportunity to provide an undertaking to address the concerns regarding clause 13 of the Agreement (Preferred Hours clause), in the letter of 28 June 2010. No undertaking has been provided to the Tribunal. Consistent with the Full Bench decision in Bupa Care Services Pty Ltd, 1 therefore, this clause does not pass the no disadvantage test.

[6] Finally, the Employer’s Declaration states that the notice of representational rights was given to employees on the same day (27 October 2009) as the employees were first asked to vote on the Agreement. Therefore, at least 21 days had not elapsed between the giving of the notice and the first request that employees vote.

[7] Accordingly, for this reason together with the other reasons set out above, I am not satisfied that the requirements of the Act for approval of the Agreement have been met.

[8] Accordingly, the application is dismissed.

COMMISSIONER

 1   [2010] FWAFB 2762

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