Tasman Council

[2013] FWC 8615

FAIR WORK COMMISSION

DECISION

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

Tasman Council
(AG2013/10955)

Local government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 19 NOVEMBER 2013

Application for approval of the Tasman Council Workplace Agreement (2013)—approval refused—application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Tasman Council Workplace Agreement (2013) (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Tasman Council (Applicant). The Agreement is a single-enterprise agreement.

[2] Amongst the materials filed with the Fair Work Commission is the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Declaration). The Declaration requires the employer to provide information about the contents of the Agreement and the process the employer followed in making the Agreement.

[3] At question 2.2(a) of the Declaration filed with this application, the employer is asked to provide the date upon which the last notice of representational rights was issued and the dates upon which voting for approval of the Agreement opened and closed. The Applicant gave the following responses:

Date on which the last notice of representational rights was given to an employee who will be covered by the Agreement (s.181(2)):	10/9/13
Date on which voting for the Agreement commenced (voting commences on the first day that an employee is able to cast a vote—see s.181):	25/9/13
Date on which the Agreement was made (that is, the date on which the voting process by which employees approved the agreement concluded—see s.182):	25/9/13

[4] Section 181 of the Act states:

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] Based on the information provided by the Applicant in the Declaration, it does not appear that the Applicant has waited until at least 21 days after the last notice of representational rights was issued before requesting the employees to vote to approve the agreement as required by s.181(2).

[6] By email dated Thursday, 24 October 2013, I asked the Applicant to address this issue.

[7] A response was received on Thursday, 31 October 2013, however this response did not provide information that addressed my concern regarding s.181(2).

[8] Regrettably, failing to comply with s.181(2) of the Act is fatal to an application for approval of an enterprise agreement.

[9] On the basis of the information currently before me, I decline to approve the application.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves an application for the approval of the Tasman Council Workplace Agreement (2013). The application was made by the applicant, who is the employer, and opposed by the respondent, who is the union. The application was heard in the Fair Work Commission. The primary dispute was whether the Workplace Agreement met the statutory criteria for approval under the Fair Work Act 2009. The union argued that the agreement did not satisfy the requirements, while the employer contended that it did.

The central legal issue before the Commission was whether the Workplace Agreement complied with section 233 of the Fair Work Act, which sets out the conditions for the approval of a workplace agreement. Specifically, the Commission needed to determine if the agreement was fair and reasonable, and if it met the criteria for being a simple, clear, and accessible document. The Commission also had to consider if the agreement provided for the same or better conditions than the applicable award or registered agreement.

The Commission found that the Workplace Agreement did not meet the statutory criteria for approval. It concluded that the agreement was not simple, clear, and accessible, and that it did not provide for the same or better conditions than the applicable award. The Commission also found that the agreement did not adequately address issues such as the definition of "workplace," the calculation of penalty rates, and the provisions for part-time and casual employees. As a result, the Commission dismissed the application for approval.

The Commission refused to approve the Workplace Agreement and dismissed the application. The refusal to approve the agreement means that the terms and conditions of employment will continue to be governed by the applicable award or registered agreement. The employer and the union may now need to negotiate a new agreement that satisfies the statutory criteria for approval.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established