Zacpac (Australasia) Pty Ltd

[2015] FWC 886

[2015] FWC 886

FAIR WORK COMMISSION

DECISION

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

Zacpac (Australasia) Pty Ltd
(AG2015/23)

COMMISSIONER CAMBRIDGE SYDNEY, 5 FEBRUARY 2015

Application for approval of the ZACPAC (AUSTRALASIA) PTY LTD ENTERPRISE AGREEMENT 2014.

[1] An application has been made for approval of an enterprise agreement known as the ZACPAC (AUSTRALASIA) PTY LTD ENTERPRISE AGREEMENT 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Zacpac (Australasia) Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 6 January 2015. The application indicated that the Employer was represented by the Australian Industry Group (AIG) and that the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (the AMWU), was a bargaining representative for the Agreement. The application included a Statutory Declaration of Kylie Jurotte made on behalf of the Employer and dated 6 January 2015, (the Declaration). The Declaration stated that the Agreement was made on 23 December 2014. 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 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 3 December 2014. The Declaration also stated that the date on which voting for the Agreement commenced was 23 December 2014. Therefore the voting for approval of the Agreement commenced on the 20th 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 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] 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 is dismissed.

COMMISSIONER

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