The Australian Workers' Union v RECivil Pty Ltd

[2011] FWA 2525

[2011] FWA 2525

FAIR WORK AUSTRALIA

DECISION

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

The Australian Workers' Union
v
RECivil Pty Ltd
(AG2011/590)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 2 MAY 2011

Application for approval of the RECivil Pty Ltd...Minor and Major AWU Construction Agreement 2010 to 2013 - application refused.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) has been made by The Australian Workers’ Union (AWU) for approval of an enterprise agreement known as the RECivil Pty Ltd...Minor and Major AWU Construction Agreement 2010 to 2013 (the Agreement).

[2] Section 186(2)(a) of the Act requires satisfaction that the agreement has been genuinely agreed to by the employees covered by the agreement. Section 188 of the Act deals with when employees have genuinely agreed to an enterprise agreement. Section 188(a)(ii) requires that the employer has complied with s.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.

[3] On the information provided in Form F17, it follows that the request of the employer to the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it was made prior to the passing of the 21 day period referred to in s.181(2). The requirement for genuine agreement in s.188 of the Act has not been met and I cannot be satisfied under s.186(2)(a) that the agreement has been genuinely agreed to by the employees covered by the agreement and the Agreement cannot be approved.

[4] On 4 April 2011, I wrote to AWU and RECivil Pty Ltd giving the parties an opportunity to provide any relevant information or submissions on the above point by no later than close of business on 11 April 2011.

[5] In the correspondence of 4 April 2011, I also raised additional issues for the consideration of the AWU and RECivil Pty Ltd in the event that the genuine consent issue discussed above was not fatal to the approval of the Agreement. I sought that the following information also be provided by no later than close of business on 11 April 2011.

[6] First, I noted that Form F17, as filed, indicated that the Agreement was made on 14 March 2011 (2.2(c)). The application for approval was lodged on 29 March 2011, 15 days after the Agreement was made. Section 185(3)(b) requires that an application for approval must be made within 14 days after the agreement is made or if in all the circumstances Fair Work Australia considers it fair to extend that period within such further period as Fair Work Australia allows.

[7] In the circumstances where the application was lodged more than 14 days after the agreement was made, I indicated that I would allow the AWU and RECivil Pty Ltd to provide any information relevant to my consideration of whether it would be fair to extend the 14 day period for lodgement.

[8] Second, I noted that no Form F22 had been filed seeking that the AWU be covered by the Agreement.

[9] Finally, I noted that the signatories page of the Agreement, at page 17, was not in accordance with the requirements for signing an agreement in Regulation 2.06A of the Fair Work Regulations 2009; which states:

“(1) For subsection 185 (5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185 (2) (a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note Paragraph 185 (2) (a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.”

[10] As no response was received by 11 April 2011, my Associate forwarded the 4 April 2011 correspondence to the parties, giving the parties a second opportunity to respond and indicating that the parties were to provide a response by 4.00 pm on Thursday, 21 April 2011. To date no response has been received.

[11] I am therefore not satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval of the RECivil Pty Ltd...Minor and Major AWU Construction Agreement 2010 to 2013 have been met.

[12] The application is refused.

SENIOR DEPUTY PRESIDENT

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