Application by Puma Energy (Australia) Services Pty Ltd [2015] FWC 111 (8 January 2015) [2015] FWC 111 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement Puma Energy (Australia) Services Pty Ltd (AG2014/7852) COMMISSIONER CAMBRIDGE SYDNEY, 8 JANUARY 2015 Application for approval of the Puma Energy (Australia) Collective Agreement 2014. [1] An application has been made for approval of an enterprise agreement known as the Puma Energy (Australia) Collective Agreement 2014 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Puma Energy (Australia) Services Pty Ltd (the Employer). The Agreement is a single-enterprise agreement. [2] The application was lodged at Brisbane on 13 October 2014. The application included a Statutory Declaration of Tamra Neyland made on behalf of the Employer and dated 13 October 2014 (the Declaration). The Declaration stated that the Agreement was made on 29 September 2014. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act. [3] The application for approval was listed for Hearing on 26 November 2014, at which time Mr M Coonan and Ms M Bostock were granted permission to appear for the Employer together with Ms T Neyland . The transcript of proceedings also recorded the appearance of the following employee bargaining representatives: Ms C Wildermuth , Ms L Gridley and Ms C Rodwell . [4] During the proceedings held on 26 November, the Fair Work Commission (the Commission) identified various issues relating to aspects of the application including the contents of certain terms contained in the Agreement which were of concern to the Commission. The Employer was invited to consider the concerns which had been raised by the Commission and in due course, make comment or further submissions and or advance any proposed rectification of the identified concerns. [5] On 12 December 2014, lawyers acting for the Employer provided the Commission with a number of documents which can be broadly described as further material in support of the application. The further material in support of the application encompassed: submissions in support of the approval of the application; a comparative chart; a further affidavit of Tamra Andria Neyland dated 12 December 2014; and a document headed Proposed Undertaking which included 9 numbered propositions. [6] The Commission has considered the further material in support of the application. A number of the concerns raised by the Commission in the Hearing held on 26 November have been adequately resolved by the further material in support of the application. However many concerns have not been satisfactorily addressed by the further material in support of the application. [7] Some particular concerns which remain but are not limited to: whether the group of employees covered by the Agreement was fairly chosen [s.186 (3) and (3A)]; and whether ordinary hours of 80 per fortnight together with additional hours prescriptions represent terms of the Agreement that contravene s.55 of the Act [s.186(2)(c)]; and whether the absence of any classifications or other work descriptors in the Agreement could, even with the Proposed Undertakings numbered 1 to 5, allow for the Commission to be satisfied that the Agreement would pass the better off overall test [s.186(d) and s.193]. [8] The Commission has given consideration to providing the applicant with further Hearing and other opportunity as a means to further attempt to redress the various ongoing concerns. However, upon reflection, the Proposed Undertakings or any subsequently developed permutation of these or other Undertakings which could, on any objective contemplation, provide rectification of the concerns that have been identified, would result in substantial changes to the Agreement. [9] Consequently, any objectively determined prognosis for the application would create a circumstance that offended subsection 190 (3) (b) of the Act. In such circumstances and in the interests of efficiency and avoidance of additional costs to the Employer, as the application is not capable of satisfying the relevant requirements of ss.186 , 187 , 190 and 193 of the Act, regrettably in this particular circumstance, the application must be dismissed. COMMISSIONER Appearances : Mr M Coonan, Ms M Bastock and Ms T Neyland on behalf of Puma Energy (Australia) Services Pty Ltd Ms C Wildermuth, Ms L Gridley and Ms C Rodwell, Employee Bargaining Representatives Hearing details: 2014. Sydney: November, 26 Printed by authority of the Commonwealth Government Printer <Price code A, PR559762>