23 Formstrip Construction Pty Ltd [2023] FWC 2065

1 Fair Work Act 2009 s.185—Enterprise agreement 23 Formstrip Construction Pty Ltd (AG2023/2580) DEPUTY PRESIDENT MASSON MELBOURNE, 18 AUGUST 2023 Application for approval of the 23 FORMSTRIP CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2023. [1] An application has been made for approval of the 23 FORMSTRIP CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2023 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act) by 23 Formstrip Construction Pty Ltd. The Agreement is a single enterprise agreement. [2] 23 Formstrip Construction Pty Ltd (the Employer) filed its application with the Commission on 1 August 2023, however did not include a Form F17 statutory declaration, a copy of the notice of employee representational rights (NERR) or a signed copy of the Agreement. Commission staff sent email correspondence to the Employer on 1 August 2023 seeking copies of these documents, to which no response was received. On 4 August 2023 Commission staff telephoned the Employer, the Employer did not answer, and a message was left with the request for the missing Form F17, NERR and signed copy of the Agreement. The Employer did not return this call or file the materials requested. [3] Following allocation of the matter to my Chambers on 8 June 2023, correspondence was sent to the Employer raising a number of concerns including a request for the missing Form F17, NERR and a signed copy of the Agreement. The other issues raised included the absence a flexibility term in the Agreement, inconsistencies with the national employment standards regarding the casual conversion and abandonment of employment provisions and the absence of apprentice rates despite apprentices being mentioned in the Agreement at clauses 3.10.10 and 5.6.4. A response was sought from the Employer by the close of business on 15 August 2023. [4] The Employer did not provide a response by the close of business 15 August 2023. As such, my Chambers sent further correspondence to the Employer on 16 August 2023 advising that if a response was not received by close of business 17 August 2023, the application was likely to be dismissed. No response was received from the Employer. [5] In the absence of a response to the matters raised by the Commission I turn to consider the application on the material before me. [2023] FWC 2065 DECISION -- 1 of 2 -- [2023] FWC 2065 2 [6] The Act sets out a number of statutory approval requirements for enterprise agreements. Relevantly, an application for approval of an enterprise agreement must be accompanied by a signed copy of the agreement1 and any declarations that are required by the procedural rules to accompany the application2. Absent the provision of a signed agreement and required declarations, which in the present case requires the provision of a Form F17 Declaration, the application cannot have been properly made. As set out above, unsuccessful attempts have been made by Commission staff and by my Chambers to obtain the required documentation in support of the application. No response has been received from the Employer. [7] In the above circumstances the application for approval of the 23 FORMSTRIP CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2023 has not been properly made and must therefore be dismissed. An order giving effect to this decision will be separately issued. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR765319> 1 Section 185(2)(a) 2 Section 185(2)(b) -- 2 of 2 --