Victorian Amateur Turf Club

[2015] FWC 4618

[2015] FWC 4618

FAIR WORK COMMISSION

DECISION

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

Victorian Amateur Turf Club
(AG2015/2952)

COMMISSIONER CAMBRIDGE SYDNEY, 8 JULY 2015

Application for approval of the Mornington Racing Club and AWU Enterprise Agreement 2015 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Mornington Racing Club and AWU Enterprise Agreement 2015 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Victorian Amateur Turf Club (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Melbourne on 9 June 2015. The application included a Statutory Declaration of Michael Milburn made on behalf of the Employer and dated 29 May 2015 (the Declaration). The Declaration stated that the Agreement was made on 27 May 2015. 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 the Fair Work Commission (the Commission) 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 employee 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 employee representational rights was given to an employee who will be covered by the Agreement was 14 May 2015. The Declaration also stated that the date on which voting for the Agreement commenced was 27 May 2015. Therefore the voting for approval of the Agreement commenced on the 13th day after the date on which the last notice of employee representational rights was given to anemployee who would be covered by the Agreement.

[6] Consequently, the Agreement does not comply with the requirements of subsection 181 (2) of the Act. The Act does not provide for the Commission to waiver or vary the time requirements of subsection 181 (2), these provisions are mandatory. The mandatory nature of these provisions is reinforced by the provisions of subsection 188 (a) of the Act.

[7] In addition to this important procedural deficiency, there were a number of unfortunate errors contained in both the Declaration and the Agreement. In order to assist the Parties, attention is drawn to the following matters.

• The application and the Declaration were made on obsolete forms which were applicable during the period of operation of Fair Work Australia.

• The Declaration identified the flexibility term in the Agreement as clause 43 when it is at clause 15. The Declaration also identified the consultation term in the Agreement as clause 42 when it is at clause 26.



• The notice of employee representational rights (NERR) that was attached to the Declaration was an obsolete version of an NERR that was applicable during the period of operation of Fair Work Australia.



• The page numbering in clause 2 of the Agreement does not correspond with the relevant clauses after clause 25 of the Agreement.



• Clause 4.1 of the Agreement could not over-ride section 54 (1) of the Act in respect to the date of operation of the Agreement.



• The Agreement contains numerous references to “an employer” which presumably should have read as “the employer”. The Agreement also makes numerous references to “the agreement” which should be distinguished as “the Agreement” so as to avoid confusion with other agreements contemplated by the Agreement, for example in respect to casual conversion or re-arrangement of ordinary working hours.



• Clause 27 inappropriately refers to Fair Work Australia.



• Clause 39 of the Agreement would need to be amended to ensure compliance with subsection 194 (h) of the Act.

[8] An opportunity to rectify the deficiencies identified with the current application could not be provided because unfortunately, the Agreement does not comply with the requirements of subsection 181 (2) of the Act. Therefore 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 is dismissed.

COMMISSIONER

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