Surex Surveyors Pty Ltd

[2010] FWA 5125

[2010] FWA 5125

FAIR WORK AUSTRALIA

DECISION

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

Surex Surveyors Pty Ltd
(AG2010/11174)

DEPUTY PRESIDENT SAMS SYDNEY, 12 JULY 2010

Surex Surveyors Pty Ltd Employee Enterprise Agreement 2010.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (‘the Act’) filed on 24 June 2010 by Surex Surveyors Pty Ltd (‘the applicant’) seeking the approval of Fair Work Australia (FWA) for a single-enterprise agreement to be known as the Surex Surveyors Pty Ltd Employee Enterprise Agreement 2010 (‘the Agreement’). When the application was listed for hearing on 9 July 2010, Ms C Brooks from Australian Industry Group (AIG) appeared for the applicant and submitted that the Agreement met all the statutory requirements of the Act and should be approved by FWA.

[2] However, when I pointed out to Ms Brooks that the date on which the employees were requested to approve the Agreement was less than 21 days after the employees were notified of their representational rights, Ms Brooks conceded that the Agreement, as filed, could not be approved. Sections 181(1) and (2) of the Act are as follows:

(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] It is plain that the Act does not permit any discretion for FWA to accept an application for approval of an enterprise agreement where the statutory minimum time of 21 days, under s 181(2), is not met. Even so, I also raised with Ms Brooks a number of other concerns I had with the Agreement. These included:

• No provision for overtime for work outside of normal hours;

• The appointment process of the employee bargaining representative; and

• Reference to the Australian Fair Pay Commission decisions.

[4] Ms Brooks undertook to provide in any new application, a comparative analysis of the salaries in the Agreement by reference to the overtime provisions under the Surveying Award 2010, for the purposes of the Better Off Overall Test (BOOT). I note that the Agreement does not provide for any flexibility or consultation terms.

[5] Nevertheless, because of the mandatory requirements of s 181(2) of the Act, this application must be dismissed.

DEPUTY PRESIDENT

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