TransACT Victoria Communications Pty Ltd
[2012] FWA 7636
•4 SEPTEMBER 2012
[2012] FWA 7636 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
TransACT Victoria Communications Pty Ltd
(AG2012/10515)
COMMISSIONER ROE | MELBOURNE, 4 SEPTEMBER 2012 |
TransACT Victoria Technical Employees Agreement 2012 - 2014.
[1] An application has been made for approval of an enterprise agreement known as the TransACT Victoria Technical Employees Agreement 2012 - 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TransACT Victoria Communications Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.
[2] I wrote to the employer identifying some concerns about the Agreement on 23 August 2012. The employer responded on 30 August 2012. I responded on the same day advising that this response satisfied a number of the concerns with respect to the content of the Agreement. There was one remaining concern with the content of the Agreement in respect to the failure of the disputes settlement procedure to allow a person independent of the employers, employees or employee organisations to mediate the settlement of disputes except where both parties agreed. The correspondence also dealt with concerns about the notice of representational rights. The relevant part of the correspondence was as follows:
“The Commissioner thanks you for the further information concerning the notice of representational rights. Unfortunately the Commissioner does not believe that the notice at Attachment B to your correspondence meets the requirements of Section 174 of the Fair Work Act.
...
The Commissioner accepts that some minor modification of the words may be acceptable. For example it is not essential to make reference to the section on AWAs or the low paid bargaining authorisation in a situation where there are no AWAs or low paid bargaining authorisation in the workplace. However, the omission of the following sentence is a major modification to the requirement.
“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”
Employees may gain the incorrect impression from your notice that the only way in which they can be represented is by making an appointment in writing of themselves or another person. Also without the required sentence employees may not be aware of their right to be represented in bargaining by a union.
The Commissioner is of the view that he does not have any discretion to waive this requirement and that he cannot approve the Agreement in these circumstances.”
[3] I invited the employer to make further submissions. On 31 August 2012 the employer advised that: “we have decided not to pursue getting approval for the agreement as it is today or make any further submissions, so will not need the hearing scheduled in.”
[4] In the circumstances I consider that the Application has been withdrawn pursuant to Section 588 of the Act. I consider it is appropriate to publish a decision to protect the rights of those involved in making the Agreement.
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