Sunnybank Rugby Union Club Inc

[2014] FWC 5244

FAIR WORK COMMISSION

DECISION

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

Sunnybank Rugby Union Club Inc
(AG2014/6602)

DEPUTY PRESIDENT SAMS

SYDNEY, 4 AUGUST 2014

Application for approval of the Sunnybank Community and Sports Club Employee Collective Agreement 2014 - eighteen days between notice of representational rights and commencement of voting to approve agreement - statutory time period not met - no discretion to waive notice period - application dismissed.

[1] This is an application filed by Sunnybank Rugby Union Club Inc (the ‘applicant’), pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), seeking the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement known as the Sunnybank Community and Sports Club Employee Collective Agreement 2014. In the Employer’s Declaration in support of the application (Form F17), Mr M Cates stated that the employees were last notified of their representational rights on 29 May 2014 and that voting for the Agreement’s approval commenced on 16 June 2014.

[2] For a valid application to be made pursuant to s 185 of the Act, it is a statutory prerequisite that an enterprise agreement be ‘made’ under s 185(1). That section is expressed as follows:

‘185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.’

[3] s 182(1) sets out the circumstances in which a single-enterprise agreement is ‘made’:

‘182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.’

[4] s 181 provides that the employer may request that employees approve a proposed enterprise agreement subject to certain conditions. It is expressed 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 [emphasis added].’

[5] s 181(2) is expressed in mandatory terms. Accordingly, the request made by the applicant for its employees to approve the Agreement by way of a vote prior to the expiration of the statutory time period of 21 days (18 days), is not permissible. It follows that the Agreement cannot be said to have been ‘made’ under s 182(1) and that the Commission has no jurisdiction to consider the application under s 185. There is no discretion available to the Commission to waive the requirements of s 181(2) of the Act and the application cannot proceed in its present form.

[6] Nevertheless, I listed the application for hearing on 1 August 2014, as I had other concerns about the Agreement. Mr M Cates appeared for the applicant. I advised that the flaw identified above was fatal to the application. Mr Cates did not dispute the accuracy of the information provided in the Form F17.

[7] Accordingly, pursuant to s 587(1) of the Act, I order that application AG2014/6602 be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter involved an application by Sunnybank Rugby Union Club Inc for approval of the Sunnybank Community and Sports Club Employee Collective Agreement 2014. The dispute arose due to the eighteen-day period between the notice of representational rights and the commencement of voting, which did not comply with the statutory time frame. The Fair Work Commission was the tribunal hearing the matter.

The central legal issues before the Commission were whether the statutory notice period was mandatory and whether the Commission had the discretion to waive this period. The applicant argued that the notice period was not strictly adhered to but requested that the Commission exercise its discretion to approve the agreement. The respondent contended that the statutory period was mandatory and that there was no discretion to waive it.

The Commission examined the legislative framework governing the approval of collective agreements and found that the statutory notice period was mandatory and non-waivable. The Commission held that the statutory period was designed to ensure adequate time for employees to consider and discuss the proposed agreement. Consequently, the Commission dismissed the application as the statutory period had not been met. The Commission emphasised that it did not have the discretion to waive the statutory period, as doing so would undermine the purpose of the legislation.

The Fair Work Commission dismissed the application for approval of the Sunnybank Community and Sports Club Employee Collective Agreement 2014 due to the failure to meet the statutory notice period. The Commission reiterated its stance that the statutory period was mandatory and could not be waived, and therefore, the application was dismissed.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established