The Grange Golf Club Incorporated

[2015] FWC 2552

[2015] FWC 2552

FAIR WORK COMMISSION

DECISION

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

The Grange Golf Club Incorporated
(AG2015/2106)

DEPUTY PRESIDENT SAMS SYDNEY, 14 APRIL 2015

Application for approval of the Grange Golf Club Inc Enterprise Agreement 2014 - 2017- failure to comply with statutory requirements - application dismissed.

[1] This is an application filed by The Grange Golf Club Incorporated (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 Grange Golf Club Inc Enterprise Agreement 2014 - 2017.

[2] In the Form F17 Employer’s Declaration, Mr B Linke, General Manager, stated that the employees had last been provided with a Notice of Employee Representational Rights (NoERR), on 2 June 2014 and that the commencement of the vote for the Agreement’s approval was 9 June 2014. The application was lodged with the Commission on 10 March 2015, having apparently been mistakenly lodged with the South Australian Industrial Relations Commission. In a telephone hearing on 7 April 2015, Mr Linke confirmed that the above dates were correct.

[3] 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.’

[4] Section 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.’

[5] Section 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].’

[6] Section 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, is not permissible. Additionally, s 182(1) sets out that an enterprise agreement can only be said to have been made when it is voted upon by a majority of the employees who cast a valid vote, vote to approve the agreement. It follows that the Agreement cannot be said to have been ‘made’ under s 182(1) and the Commission has no jurisdiction to consider the application under s 185. Regrettably, 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.

[7] Accordingly, pursuant to s 587(1)(a) of the Act, I order that application AG2015/2106 be dismissed.

DEPUTY PRESIDENT

<Price code A, PR563047>