The Trustee for the Johnston Family Trust T/A Roar Road & Rail (Aust) Pty Ltd

[2015] FWC 2167

[2015] FWC 2167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for the Johnston Family Trust T/A Roar Road & Rail (Aust) Pty Ltd
(AG2015/173)

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 MARCH 2015

Application for approval of the Roar Road and Rail (Aust) Pty Ltd Enterprise Agreement 2015-2016 - Application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Roar Road and Rail (Aust) Pty Ltd Enterprise Agreement 2015-2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by The Trustee for the Johnston Family Trust (Roar Road & Rail (Aust) Pty Ltd). The Agreement is a single enterprise agreement.

[2] 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.” [underline added]

[3] Based on the information contained in the Form 17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, voting on the agreement by employees commenced on 16 January 2015. The date the last Notice of Representational Rights (NERR) was given to employees was 12 January 2015, which is the fourth day after the NERR was last issued. In other words, the employer requested the employees, who will be covered by the agreement, to approve the agreement by voting for it contrary to the prohibition in s.181(2) if the Act.

[4] On 18 March 2015, the Applicant was contacted by email raising several issues with the proposed enterprise agreement. Amongst other issues, the failure to provide employees with 21 days notice before the commencement of voting for the agreement was highlighted as being inconsistent with the Fair Work Act. The Applicant was asked to respond to this email no later than 23 March 2015 however failed to do so.

[5] Section 186(2) requires the Commission to be satisfied, amongst other things that the agreement has been genuinely agreed to by the employees. Section 188 sets out the matters about which the Commission must be satisfied whether the employees genuinely agreed. One of the matters is whether s.181(2) has been complied with. It is clear that that Section has not been complied with. It follows that I cannot be satisfied that all of the requirements of s.186(2) have been met. The application for approval of the agreement is therefore dismissed.

DEPUTY PRESIDENT

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