Studio Steel Pty Ltd

[2015] FWC 7534

[2015] FWC 7534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Studio Steel Pty Ltd
(AG2015/5802)

COMMISSIONER LEE MELBOURNE, 27 NOVEMBER 2015

Application for approval of the Studio Steel Pty Ltd Enterprise Agreement 2015 - 2018 - application dismissed.

[1] On 8 October 2015, Studio Steel Pty Ltd (the Applicant) applied to the Fair Work Commission (the Commission) under section 185 of the Fair Work Act 2009 (the Act) for the approval of the Studio Steel Pty Ltd Enterprise Agreement 2015-2018 (the Agreement).

[2] I had a number of concerns about the pre-approval process for the Agreement. In particular, I was concerned that there was insufficient information contained in the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17), to satisfy me that the Applicant had complied with s.180(2)(a), s. 180(3) and s. 180(5) of the Act. Correspondence was forwarded to the Applicant setting out my concerns. The response to the correspondence did not satisfy my concerns and subsequently I listed the matter for hearing.

[3] On 23 October 2015, I held a telephone hearing and dismissed the application ex tempore. What follows are my written reasons for making that Decision.

[4] In order for an enterprise agreement to be approved, the Commission needs to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement (s.186(2)(a)). Section 188 of the Act sets out the requirements for genuine agreement in the following terms:

“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); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[5] Section 188(a)(ii) requires the Commission to be satisfied that the employer complied with the provisions in s. 181(2). Section 181(2) is in the following terms:

“181 Employers may request employees to approve a proposed enterprise agreement

(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.”

[6] In this matter, it was very difficult to attain satisfaction that the agreement had been genuinely agreed to as there was limited information provided in the Form F17. I listed the matter for hearing in order to clarify what pre approval steps had been taken by the Applicant.

[7] At the hearing, the Applicant was represented by Mr. Hamlet. Mr. Hamlet made it clear that the Notice of Representational Rights (NERR) required to be provided to employees was provided on 15 September 2015. Mr. Hamlet was also clear at the hearing that a NERR was not provided to employees any earlier than 15 September 2015.

[8] Mr. Hamlet was less clear about when employees were advised of the time and place at which the vote was to occur and the voting method to be used. Mr. Hamlet submitted that he didn’t specify a date that the vote would take place. 1 Mr. Hamlet submitted that Mr. Smith, the workshop supervisor was involved in the vote taken by employees. Mr. Smith stated that he notified employees of the date and place at which the vote was to occur on 7 September 2015. He also stated the vote took place that same day. That is, the vote occurred on 7 September 2015.

[9] It is clear from the statements of Mr Hamlet and Mr. Smith made at the hearing that the only NERR given was done so 8 days after the vote had taken place. This does not comply with s. 181(2) of the Act. It follows that I cannot be satisfied that the agreement has been genuinely agreed to as I am not satisfied the employer complied with the provisions of s.181(2). As I am not satisfied that the agreement has been genuinely agreed to, I cannot be satisfied the requirement in s.186(2)(a) has been met. I therefore cannot approve the agreement and the application is dismissed.

[10] Having dismissed the agreement for these reasons, it was not necessary to deal with a number of other matters of concern. However, I also note that there is a lack of evidence that the employer took reasonable steps to explain the terms of the agreement to employees. Further, it is evident that the employer did not notify employees by the start of the access period for the agreement of the matters dealt with in s.180(3).

COMMISSIONER

Appearances:

B Hamlet on behalf of the Applicant

Hearing details:

2015

Melbourne and Cooroy (by Telephone)

October 23

 1   PN103

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