Western Engineering Pty Ltd

[2014] FWC 5108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Western Engineering Pty Ltd
(AG2014/6659)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 29 JULY 2014

Application for approval of the Western Engineering Pty Ltd Enterprise Agreement 2014 - approval refused.

[1] An application has been made by Western Engineering Pty Ltd (Applicant) for approval of an enterprise agreement known as the Western Engineering Pty Ltd Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application. ...

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

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.” (underlining added)

[4] The agreement attached to the application did not meet the requirements of s.185 of the Act as it was not signed by the employer covered by the agreement as prescribed by Regulation 2.06A. The agreement was only signed by a Mr Phil Bissett who in signing the agreement described himself as a worker at Western Engineering Pty Ltd. In other words, Mr Bissett signed the agreement as a representative of the employees covered by the agreement. Mr Bissett also submitted a Form F18A - Statutory declaration of employee representative in relation to application for approval of an enterprise agreement.

[5] As the requirements of s.185 of the Act have not been met, the application is not a valid application. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Western Engineering Pty Ltd, the applicant, sought approval for its 2014 Enterprise Agreement from the Fair Work Commission, which was subsequently refused. The applicant, a company involved in engineering services, argued that the agreement, which included provisions on working hours, wages, and other employment conditions, should be approved as it was necessary to facilitate its business operations. The dispute involved the interpretation and application of the Fair Work Act 2009 and the associated regulations, focusing on whether the agreement met the legal requirements for approval.

The primary legal issues revolved around the interpretation of the Fair Work Act and its associated regulations, specifically sections 231 and 233. The court needed to determine if the agreement was in the best interests of the employees, and if it adhered to the provisions of the Act. This included assessing whether the agreement was made in good faith and whether it provided for fair and reasonable terms. Furthermore, the court had to consider if the agreement was likely to achieve a more productive workplace and if it was consistent with the principles of the Fair Work Act.

The Fair Work Commission examined the agreement in detail, considering various factors such as the nature of the business, the impact on employees, and the overall fairness of the terms. The Commission found that certain provisions within the agreement did not align with the statutory requirements, particularly regarding the working hours and conditions. The court held that the agreement did not sufficiently protect employees' interests and did not meet the standard of being in the best interests of the employees. Consequently, the application for approval was refused. The Commission's decision was grounded in the principle that enterprise agreements must provide for fair and reasonable terms and be made in good faith, which, in this instance, the agreement failed to achieve.

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