Ulster Services Pty Ltd T/A E-Tech Group

[2019] FWC 1367

[2019] FWC 1367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Ulster Services Pty Ltd T/A E-Tech Group
(AG2018/6367)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 MARCH 2019

Application for variation of the E-Tech Group Onsite Construction Employees Enterprise Agreement 2014-2018.

[1] An application has been made on 15 November 2018 for approval of a variation to the E-Tech Group Onsite Construction Employees Enterprise Agreement 2014 – 2018 (the Agreement). The application was made by Ulster Services Pty Ltd T/A E-Tech Group (the Applicant) pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved on 18 February 2015.

[3] On 1 February 2019 staff of the Fair Work Commission (the Commission) sent an email to the Applicant Ms Rebecca McKay noting concerns relating to the application, most notably in relation to compliance with Regulation 2.09A of the Fair Work Regulation 2009 (the Regulations), concerns relating to section 180(3) and section 180(5) of the Act, and concerns relating to the Better Off Overall Test. No response was received.

[4] On 12 February 2019 staff of the Commission sent an email to the Applicant seeking a response. No response was received.

[5] On 20 February 2019 staff of the Commission sent another email to the Applicant seeking a response. No response was received

[6] On 22 February 2019 staff of the Commission sent another 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

[7] Section 210 and section 211 of the Act sets out requirements for the Commission’s approval of a variation of an enterprise agreement.

[8] Section 210(2) requires that a signed copy of the variation accompany an application. This has not been provided

[9] Section 211(1) requires the Commission approve a variation is the Commission is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186.

[10] Section 180(3) of the Act 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”.

[11] 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).

[12] The response to questions 2.2 and 2.5 of the Form F23A provides that notification of the vote was provided to employees on 7 November 2018 and employees were able to cast their votes on 14 November 2018. It appears on the face of the response the employer has not complied with section 180(3) of the Act.

[13] Section 180(5) of the Act requires an employer to take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms are explained to relevant employees and that the explanation is provided in an appropriate manner taking into account the particular needs and circumstances of the of the relevant employees.

[14] The response to question 2.3 of the Form F23A does not appear to provide information about the steps taken by the employer to explain the terms of the variation and their effect to all affected employees. It appears on the face of the response the employer has not complied with section 180(5) of the Act.

[15] I am not satisfied the requirement of section 210 of the Act have been met. 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 required steps before asking employers to approve the Variation. I therefore would dismiss the Application on this ground alone.

[16] I am also not satisfied that relevant employees genuinely agreed to the variation because I am not satisfied that the Applicant complied with section 180(3) and section 180(5) of the Act.

[17] The Applicant has been given opportunities to provide further information but has provided no response despite efforts by staff of the Commission to procure an explanation.

[18] For these reasons the Application is dismissed.

DEPUTY PRESIDENT

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