[2013] FWC 3143

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5948)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 23 MAY 2013

Application for approval of the Exactacut Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 - Approval refused.

[1] On 8 April 2013, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Exactacut Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] On the information provided with the application, in Form F17 at item 2.9, it was stated that only one person will be covered by the Agreement, only one person cast a vote and only one person voted to approve the Agreement.

[3] The Act was amended by the Fair Work Amendment Act 2012 (Amendment Act) which came into force on 1 January 2013. In schedule 4—Enterprise Agreements, of the Amendment Act a new requirement was introduced that there be at least two employees covered by an agreement and has been inserted into the Act at s.172(6) as follows:

[4] On the information filed with the application, I was concerned that the requirement in s.172(6) of the Act, that the Agreement was made with a single employee had not been met and the Agreement cannot be approved. Accordingly on 11 April 2013, I wrote to the parties to the Agreement - the CFMEU and Exactacut Pty Ltd advising them of my concern and my view that the Agreement cannot be approved, affording them an opportunity to put submissions on the point, to correct any relevant information in the Form F17 (with supportive evidence as to the true facts) or to withdraw the application on the basis that a new agreement can be made if and when the employer employs more than one employee.

[5] On 2 May 2013, Exactacut Pty Ltd responded suggesting that the Agreement may be approved because it employs some casual employees who agree with the Agreement and the Agreement at that time covered one full-time employee and two casual employees.

[6] On 3 May 2013, I corresponded with the CFMEU and Exactacut Pty Ltd stating:

[7] I have received no response to my correspondence of 3 May 2013.

[8] Accordingly, consistent with that correspondence and the reasons indicated above, I have decided that the Agreement cannot be approved in light of s.172(6) of the Act because it was made with a single employee.

[9] The application for approval of the Exactacut Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 is refused.

SENIOR DEPUTY PRESIDENT

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