ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve Pennyco Pty Ltd T/A Zarraffas West Ipswich 2016 EBA (the Agreement) – Agreement lodged for approval on 26 September 2016 – bargaining representative for employer listed as ‘Platinum ER P/L’ (Platinum) – application signed by Michael Corrigan of Platinum – accompanying statutory declaration (F17) stated employees were given draft Agreement to read, that consultation meeting occurred and that employees were given 14 days to read final document – F17 further stated that voting by secret ballot took place and that, of eight employees, seven cast a valid vote and seven employees voted to approve the Agreement – F17 signed by Scott Penrose, Director of employer – Agreement signed by Scott Penrose on behalf of employer, and by Nicole Penrose on behalf of the employees – Mr Corrigan appeared for the employer at the approval hearing – Mr Corrigan explained that the Agreement provides for a reconciliation of an employee’s pay to be performed on an annual basis against the relevant award – Agreement approved by Commission – email sent by lawyers for employer on 23 January 2017 to Commission explained that F17 had contained incorrect information, and that employer had no employees at time of approval and that no vote on Agreement had taken place – lawyers for employer stated that Platinum had provided F17 to Scott Penrose and that he had signed it without properly reading its contents – lawyers for employer stated that Mr Corrigan never explained agreement approval process with Scott Penrose – appeal lodged against approval of Agreement on grounds that two material factual considerations were not taken into account: employer had no employees; Agreement does not pass the BOOT – Scott Penrose and Nicole Penrose submitted that they were told by Mr Corrigan to simply complete the address section of the F17 and sign it in the presence of a JP, before returning it to Mr Corrigan to lodge – Scott Penrose submitted that he assumed the F17 contained factually correct information – Mr Corrigan submitted he had told Scott Penrose about the requirements for voting on the Agreement, and that he assumed Scott Penrose would have followed his instructions – Mr Corrigan submitted he did not know the F17 contained incorrect information – appeal filed outside 21 day period – length of and reason for delay relevant, as well as nature of grounds of appeal and any prejudice to respondent [Jobs Australia v Eland] – no satisfactory explanation for delay – correspondence with Commission occurred approximately six months prior to appeal being lodged – absence of explanation outweighed by public interest in granting permission to appeal, and overwhelming merits of appeal – extension of time granted – permission to appeal granted – appeal upheld – Decision approving Agreement quashed – matter referred to Australian Federal Police for investigation as to whether any criminal offence has been committed. Appeal by Pennyco P/L t/a Zarraffas West Ipswich against decision of Sams DP of 18 October 2016 [[2016] FWCA 7494]
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