Steven Michael Hassett

[2013] FWC 7170

[2013] FWC 7170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Steven Michael Hassett
(AG2013/8480)

Electrical contracting industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 18 SEPTEMBER 2013

Application for approval of the Steven Hassett Enterprise Agreement 2013-2017 - agreement not genuinely agreed to - application dismissed.

[1] An application has been made by Steven Michael Hassett for approval of an enterprise agreement known as the Steven Hassett Enterprise Agreement 2013-2017 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] An employer’s declaration in support of the application (Form F17) sworn by Joanna Hassett, Office Clerk of Steven Hassett T/A Hassett Electrics (the employer) was included in the application.

[3] The information completed by the employer in the Form F17 in answer to question 2.2 states that the date on which the last notice of employee representational rights was given to employees to be covered by the agreement was 6 August 2013 and that the date on which voting commenced was 6 August 2013.

[4] Section 181 of the Act 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.”

[5] The request to the employees to vote on the Agreement and the day when the voting took place was the same day, which is clearly inconsistent with the requirements of s.181(2) of the Act.

[6] On 21 August 2013 I wrote to the Applicant raising this issue. I asked the Applicant to advise me by 28 August 2013 if the information provided was incorrect or the application would be dismissed on the papers. The Applicant has not responded despite being contacted by my chambers in early September.

[7] Section 186 of the Act provides that:

“(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC 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; ...”

[8] Section 188 of the Act sets out when employees have genuinely agreed to an enterprise agreement. It provides that:

“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 the FWC 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); ...”

[9] As the requirements of s.181(2) of the Act have not been complied with, I cannot be satisfied that employees have genuinely agreed to the enterprise agreement. Accordingly, I am not satisfied that the requirements of s.186 of the Act have been satisfied.

[10] The application for approval of the Agreement is therefore dismissed.

DEPUTY PRESIDENT

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