Tree Industries Pty Ltd

[2011] FWA 4328

[2011] FWA 4328

FAIR WORK AUSTRALIA

DECISION

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

Tree Industries Pty Ltd
(AG2011/1437)

COMMISSIONER CAMBRIDGE SYDNEY, 7 JULY 2011

Application for approval of the Tree Industries Pty Ltd Enterprise Agreement 2011

[1] An application has been made for approval of an enterprise agreement known as the Tree Industries Pty Ltd Enterprise Agreement 2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tree Industries Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Brisbane on 22 June 2011. The application included a Statutory Declaration of Leesa Wood made on behalf of the Employer and dated 15 June 2011 (the Declaration). The Declaration stated that the Agreement was made on 11 June 2011. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states 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.

[4] As can be seen from subsection 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.

[5] In this instance, the Declaration stated that the date on which the last notice of representational rights was given to an employee who will be covered by the Agreement was 25 May 2011. The Declaration also stated that the date on which voting for the Agreement commenced was 11 June 2011. Therefore the voting for approval of the Agreement commenced on the 17th day after the date on which the last notice of representational rights was given to anemployee who would be covered by the Agreement.

[6] Consequently the Agreement has not been made in accordance with the requirements of subsection 181 (2) of the Act. The Act does not provide for FWA to waiver or vary the time requirements of subsection 181 (2), these provisions are mandatory.

[7] Unfortunately the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 must be refused. Accordingly the application must be dismissed.

COMMISSIONER

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