The Trustee for Westling Family Trust T/A BayJax Dogging and Rigging Services

[2018] FWCA 4673

[2018] FWCA 4673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

The Trustee for Westling Family Trust T/A BayJax Dogging and Rigging Services
(AG2018/932)

BAYJAX SERVICES ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 AUGUST 2018

Application for variation of the BayJax Services Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the BayJax Services Enterprise Agreement 2017 (the Agreement). The application was made by The Trustee for Westling Family Trust T/A BayJax Dogging and Rigging Services (the Applicant) pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved on 14 September 2017.

[3] The current Application was lodged with the Fair Work Commission (the Commission) on 13 March 2018 by email received at 10:20am. The following documents were lodged:

● Form F23

● Form F23A statutory declaration made by Michael Westling (the Form F23A)

[4] On 16 March 2018 staff of the Commission sent an email the Applicant seeking a copy of the signed variation.

[5] On 19 June 2018 staff of the Commission spoke with the Mr Michael Westling the director of the Applicant, seeking a copy of the signed variation and a copy of the agreement as varied be provided to the Commission.

[6] On 21 June 2018 staff of the Commission sent an email to the Applicant requesting a copy of the signed variation and a copy of the agreement as varied be provided to the Commission, indicating the application could not be progressed until these documents had been received. No response was received to this email.

[7] On 29 June 2018 staff of the Commission again sent an email to the Applicant requesting a copy of the signed variation and a copy of the agreement as varied be provided to the Commission, indicating that if no response was provided the application may likely be dismissed under section 587 of the Act.

[8] On 29 June 2018 the Applicant advised staff of the Commission that documentation would be submitted prior to the allocated date for a response, being Wednesday 4 July 2018

[9] On 11 July 2018 staff of the Commission again sent an email to the Applicant requesting a copy of the signed variation, a copy of the agreement as varied and provided the Applicant additional information about concerns relating to the responses provided on the Form F23A, most notably those relating to section 180(3), section 180(4), section 209 and 210(3) of the Act. No response was received to this email.

[10] On 17 July 2018 staff of the Commission again sent an email to the Applicant requesting a response to the previous email of 11 July 2018.

[11] On the same day the Commission spoke with Mr Westling, where he explained the reasons the variation was needed. Staff of the Commission explained to Mr Westling that the Application did not appear to comply with the legislative requirements. Mr Westling sought information about the next steps and staff of the Commission explained that the Applicant could either withdraw the application or provide a response and submissions in relation to the concerns outlined.

[12] On the same day staff of the Commission sent an email to the Applicant a blank Form F50 – Notice of Discontinuance. No response was received to this email.

[13] On 24 July 2018 staff of the Commission sent an email to the applicant seeking a response. No response was received to this email.

[14] On 31 July 2018 staff of the Commission sent an email to the applicant seeking a response and providing that the application may be determined on the documentation lodged with the Commission and may be dismissed. No response was received to this email.

[15] Section 210 of the Act sets out requirements for the Commission’s approval of a variation of an enterprise agreement. It relevantly provides as follows:
…
Material to accompany the application

(2) The application must be accompanied by:
(a) a signed copy of the variation; and
(b) a copy of the agreement as proposed to be varied; and

(c) any declarations that are required by the procedural rules to accompany the application.

[16] Section 210(2) requires that a signed copy of the variation and a copy of the agreement as proposed to be varied accompany an application. These have not been provided to the Commission by the Applicant.

[17] Section 180(3) requires an employer to take all reasonable steps to notify the relevant employees of the date and place at which the vote will occur and of the voting method to be used “by the start of the access period”.

[18] Section 180(4) sets out the meaning of ‘access period’. It relevantly provides as follows:

…

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

[19] The response to questions 2.2 and 2.5 of the Form F23A provides that notification of the vote was provided to employees on 11 January 2018 and employees were able to cast their votes from 12 January 2018. It appears on the face of the response the employer has not complied with section 180(3) of the Act.

[20] Section 209 of the Act sets out when a variation of an Enterprise Agreement is made. It relevantly provides as follows:

…

Single-enterprise agreement

(1)  If the affected employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees who cast a valid vote approve the variation.

[21] The response provided at question 2.7 of the Form F23A provides that there were 0 affected employees who cast a valid vote for the variation and 0 affected employees voted to approve the variation.

[22] Section 210(3) of the Act sets out when the application must be made. It relevantly provides as follows:

…

When the application must be made
(3)  The application must be made

(a)  within 14 days after the variation is made; or

(b)  if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

[23] Question 2.5 of the Form F23A provides that the variation was made on 23 January 2018 and as noted above the application was lodged on 13 March 2018. The Applicant has not provided any explanation of the delay or any other material upon which I might form a proper view as to whether to exercise my discretion to allow a further period.

[24] Section 587 of the Act relevantly provides as follows:

…

(1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a)  the application is not made in accordance with this Act; or
(b)  the application is frivolous or vexatious; or
(c)  the application has no reasonable prospects of success.

[25] It is plain that the Application has not been made in accordance with s.210. This is so despite repeated requests to the Applicant to rectify the deficiency. The material that is contained in the Form F23A does not provide a basis on which I might be satisfied that the Applicant has complied with some of the requisite steps before asking employers to approve the variation. I therefore would dismiss the Application on this ground alone.

[26] In any event I would not allow a further period within which to make the application, given the absence of any explanation for the delay despite efforts by staff of the Commission to procure an explanation.

[27] Moreover, even if the Application proceeded, I am not satisfied that relevant employees genuinely agreed to the variation because I am not satisfied that the Applicant complied with section 180(3) of the Act.

[28] For these reasons the Application is dismissed.

DEPUTY PRESIDENT

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