Superharmonious Pty Ltd T/A Guidance Road Management

[2013] FWC 5136

[2013] FWC 5136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Superharmonious Pty Ltd T/A Guidance Road Management
(AG2013/1451)

COMMISSIONER MACDONALD SYDNEY, 30 JULY 2013

Application for approval of the Guidance Road Management Services Pty Ltd Enterprise Agreement - section 181(2) - application rejected.

[1] An application has been made for approval of an enterprise agreement known as the Guidance Road Management Services Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Superharmonious Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] Part 2-4 of the Act includes procedural requirements that must be satisfied before the Fair Work Commission (FWC) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states 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.”

[3] As can be seen from subsection 181 (2), a period of at least 21 days must elapse after the last Notice of Representational Rights is given, before any voting to approve an agreement is made. Thus, the date on which the last Notice of Representational Rights is given, is not a date included in the 21 days period criterion. The earliest date that voting can take place is on the 22nd day after the date that the last Notice of Representational Rights is given.

[4] The enterprise agreement application was accompanied by the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17 and Employer’s Declaration). Paragraph 2.8 of Form F17 advised that the date on which the last Notice of Representational Rights was given to an employee, who will be covered by the Agreement, was 20 May 2013. A copy of the Notice of Representational Rights was not attached to the Employer’s Declaration.

[5] Paragraph 2.8 also advises that the date on which voting commenced was 27 May and the date on which the voting concluded was 30 May 2013. Thus, the lapse of time between the giving of the Notice of Representational Rights (20 May) and the request by the applicant to vote for the approval of the Agreement (27 May) is only a lapse period of six days (having excluded 20 May and 27 May for counting purposes) and falls well short of the 21 day lapse period required by s.181(2).

[6] My office wrote to the applicant on 25 June advising that the enterprise agreement application could not be approved because of the mandatory statutory requirement of a lapse of 21 days. That correspondence also advised of the absence of the Notice of Representational Rights. There was no response to this email correspondence.

[7] Follow up email correspondence from my office to the applicant was also dispatched on 12 July but to no avail.

[8] The correspondence of 25 June out of my office also raised issues with the enterprise agreement application, as to whether it would pass the Better Off Overall Test - that is, the existing and future employees may not be Better Off Overall under this proposed enterprise agreement.

[9] On the basis of paragraph 2.8 of the Employer’s Declaration, the voting for the enterprise agreement commenced earlier than that permitted by s.181 of the Act.

[10] Accordingly, I dismiss the application for approval of the Agreement.

COMMISSIONER

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