Transfield Services (Australia) Pty Ltd t/a Transfield Services

[2015] FWC 8762

[2015] FWC 8762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transfield Services (Australia) Pty Ltd t/a Transfield Services
(AG2015/6251)

COMMISSIONER LEE MELBOURNE, 18 DECEMBER 2015

Application for approval of the Transfield Services (Otway Gas) Mechanical Maintenance Agreement 2015 – application dismissed.

[1] Transfield Services (Australia) Pty Ltd t/a Transfield Services (the Applicant) made an application for approval of the Transfield Services (Otway Gas) Mechanical Maintenance Agreement 2015 (the Agreement)on 20 November 2015. The application was allocated to me.

[2] The application was the subject of a hearing on 10 December 2015. The hearing was held as the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged a Form F18 Statutory Declaration opposing the approval of the Agreement and sought to be heard.

[3] At the conclusion of the hearing I advised the parties that, subject to receiving a signed copy of the Agreement and undertakings in terms that were discussed at the hearing and subject to any views of the bargaining representatives in relation to the undertakings, I indicated I was predisposed to approving the Agreement. I also indicated that in my view, it was clear that the Fair Work Commission cannot approve the Agreement unless it is properly signed in accordance with the requirements of the Fair Work Act 2009 (the Act).

[4] Neither a properly signed signature page nor the undertakings canvassed at the hearing were provided within the requisite time frame. On Wednesday 16 December 2015, my associate wrote to the Applicant and advised that if a signed copy of the Agreement and proposed undertakings were not provided to the Commission and the parties by 5.00pm Thursday 17 December 2015 the application would be dismissed.

[5] On 17 December 2015, my Chambers was advised by the Applicant’s representative that the Applicant was not in a position to file a signed copy of the Agreement made with the employees.

[6] Section 186(1) provides as follows:

(1) If an application for the approval of an enterprise agreement is made under subsection 182 (4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

[7] Section 185 deals with applications for approval of enterprise agreements. Relevantly it provides at s.185(2) that the application must be accompanied by a signed copy of the Agreement.

[8] Section 185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A(2) specifies what constitutes a signed Agreement for the purposes of s.185(2)(a). Regulation 2.06A is in the following terms:

“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(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.”

[9] The application lodged was not signed by at least one representative of the employees covered by the Agreement. Despite being provided with the opportunity, the Applicant has not supplied a signed copy of the Agreement with the meaning of the Act. It follows that the Agreement does not meet the requirements for approval and I therefore cannot approve the Agreement pursuant to s.186 and s.187 of the Act.

[10] The application is therefore dismissed.

COMMISSIONER

Appearances:

G Gosling on behalf of the Applicant

D Vroland on behalf of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union

Hearing details:

2015

Melbourne

December 10

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