Action Industrial Catering Pty Ltd T/A Action Industrial Catering

[2021] FWCA 3723

[2021] FWCA 3723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Action Industrial Catering Pty Ltd T/A Action Industrial Catering
(AG2021/4991)

ACTION INDUSTRIAL CATERING ENTERPRISE AGREEMENT2021

Hospitality industry
COMMISSIONER JOHNS	SYDNEY, 30 JUNE 2021

Application for approval of the Action Industrial Catering Enterprise Agreement2021.

[1] An application has been made for the approval of an enterprise agreement known as the Action Industrial Catering Enterprise Agreement2021 (2021 Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) on 5 May 2021. The application was made by Action Industrial Catering Pty Ltd (Applicant/ Action Industrial Catering/ Employer). The 2021 Agreement is a single enterprise agreement.

[2] Until it is replaced, the employees are covered by the Action Industrial Catering Enterprise Bargaining Agreement 2017  1(2017 Agreement). The 2017 Agreement passed its nominal expiry date (NED) on 1 October 2020.

[3] As between the NED for the 2017 Agreement and the making of the 2021 Agreement Action Industrial Catering made another enterprise agreement with its employees in 2020 (2020 Agreement). The Employer commenced bargaining for the 2020 Agreement when it issued a Notice of Employee Representational Rights (NERR) on 20 August 2020. An application for approval of the 2020 Agreement was lodged with the Fair Work Commission (Commission) on 11 February 2021.

[4] Following the Employer lodging an application for approval of the 2020 Agreement, an administrative assessment was completed to identify any possible compliance issue under the FW Act. The concerns were made known to the Employer. In February 2021 the Employer responded to the concerns, made submissions and proffered undertakings.

[5] Notwithstanding the submissions made by the Employer I continued to have concerns about whether the Employer had, in respect of the 2020 Agreement, fulfilled its obligations under section 180(5) of the FW Act i.e. whether it took all reasonable steps to ensure that the terms of the 2020 Agreement, and the effect of those terms, were explained to the relevant employees. There was also an issue concerning the Employer’s failure to provide 7 clear days between the notification of voting and the commencement of voting.

[6] A hearing was set down for 30 March 2021. However, on 23 March 2021 the Employer withdrew the application for approval of the 2020 Agreement.

[7] An application for approval of the present agreement, the 2021 Agreement, was lodged on 5 May 2021. I noted that a number of the issue raised in the administrative checklist in the relation to the 2020 Agreement were resolved in the 2021 Agreement, especially those relating to the National Employment Standards.

[8] Between 21 -28 April 2021, 257 (63%) of the 410 employees eligible to vote on the 2021 Agreement voted. Of those 216 employees (70% of employees who voted) voted to approve the 2021 Agreement.

[9] Interestingly, but not relevant to the present matter, 58% of eligible employees voted on the 2020 Agreement and 85% of them voted in favour. That is to say, while the percentage of eligible employee who voted increased as between 2020 and 2021, fewer employees voted to approve the 2021 Agreement than voted to approve the 2020 Agreement, notwithstanding that both agreements are very much alike.

[10] On 11 May 2021, I issued Directions, which programmed and provisionally listed the matter for hearing. As I had previously done in respect of the 2020 Agreement, I provided the Employer with the Commission’s administrative analysis of the 2021 Agreement (Commission’s 2021 Checklist). I explained that I had not formed any view about the matters in the Commission’s 2021 Checklist, but that I was providing it as a matter of procedural fairness.

[11] The Directions provided an opportunity for the Applicant to address any issues identified in the review of the Commission’s 2021 Checklist by way of filing further materials and/or the proffering of undertakings.

[12] On 14 May 2021, the Employer provided a response to the matters raised in the Commission’s 2021 Checklist. It made submissions about the Commission’s 2021 Checklist. The Applicant also outlined that they would later file an undertaking in line with their submissions.

The hearing

[13] A hearing in the matter occurred on 27 May 2021. The Applicant was represented by Mr B Gee, Partner of FCB Workplace Law. Being satisfied that the matter was invested with some complexity and that I would be assisted in the efficient conduct of the matter if permission to be represented by an external solicitor was afforded, I granted Mr Gee permission to appear pursuant to s.596 of the FW Act.

[14] All the application documents, emails from the parties, and formal submissions and attachments filed, whether specifically noted or not, are before me in considering the application and the Union’s opposition to same.

This includes the following:

Exhibit	Document title
Directions dated 11 May 2021
1	Forms: F16 Application for approval of an Enterprise Agreement dated 5 May 2021
2	Forms: F17 Employer's Declaration in Support of an Application for Approval of and Enterprise Agreement dated 5 May 2021
2a	Annexure to Form F17 Declaration dated 5 May 2021
2b	Attach A	Email attaching NERR dated 20 August 2020
2c	Attach B	Powerpoint presentation no date
2d	Attach C	Letter to Employees re 2020 Enterprise Agreement dated 3 November 2020
2e	Attach D	Email attaching EBA 2020, Voting Information and FAQ Sheet dated 18 November 2020
2f	Attach E	Letter to Employees EBA Update dated 24 March 2021
2g	Attach F	Email re Timeline for 2021 Enterprise Agreement Vote dated 5 May 2021
2h	Action Industrial Catering Enterprise Agreement 2021
2i	Attach H	Analysis by Civeo no date
3	Forms: F1 – Application dated 6 May 2021
3a	Draft Confidentiality Order no date
4	Confidentiality Order dated 15 March 2021
5	Applicant’s Outline of Submission dated 14 May 2021
6	Witness Statement of Lesley Jolly dated 26 February 2021
6a	LJ1	Action Industrial Catering 2020 Enterprise Agreement FAQ Sheet no date
6b	LJ2	Vote results no date
7	Action Industrial Catering Enterprise Agreement 2021 signed
8	Link to recording of Webinar session
9	Applicant’s F53 Notice that a person has a lawyer or paid agent dated 13 May 2021

The NERR Issue

[15] The Commission’s 2021 Checklist identified a number of matters that needed to be clarified or resolved before the Application was able to be approved. I do not repeat them all here. It is unnecessary to do so. For the most part I was satisfied with the submissions made and undertaking offered in answer to the Commission’s 2021 Checklist. I am further satisfied that concerns I had about the explanation of the terms and effect of the 2020 Agreement were resolved in the process leading up to the making of the 2021 Agreement.

[16] Substantively one issue remained outstanding. It was described in the Commission’s 2021 Checklist as follows:

“Q17 of the F17 indicates that notification date as 20 August 2020 and NERR was provided to employees on 20 August 2020, however this appears to be when the Notification date and when the NERR was provided for AG2020/3847 which was withdrawn on 23/03/2021 (NERR Issue).”

[17] Section 173(1) of the FW Act provides:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.”

NERR Issue - Applicant’s 14 May 2021 Submissions

[18] In their submissions, the Employer outlined:

Form F17 Q17 - Notice of Employee Representational Rights

10. The Applicant agreed to commence bargaining on 20 August 2020 (Notification Time) and issued the (NERR) on this same date, 20 August 2020. It issued the NERR as it was required to pursuant to s.173(3)of the Act.

11. On 23 March 2021, the Applicant withdrew its application to the Fair Work Commission to approve the 2020 Agreement.

12. On 26 March 2021, the Applicant notified all employees who would have been covered by the 2020 Agreement (and who are the same group to be covered by the 2021 Agreement) (Employees) of the decision to withdraw the application for approval of the 2020 Agreement and an intention to make the 2021 Agreement.

13. The Applicant did not commence a new notification time. No term in the Act has the effect that a withdrawal of an enterprise agreement from an approval process terminates a bargaining process or mandates that a new NERR must be issued in respect of a new notification time.

14. The Applicant did not intend to terminate bargaining in its withdrawal of the 2020 Agreement. To the contrary, the evidence is that the Applicant intended to continue and make the “same agreement”.

15. It follows that a new NERR was not required to be given to employees as the Applicant did not commence a new bargaining process, rather this matter involved a continuous bargaining process whereby employees were asked to vote on the same Agreement, save for minor administrative amendments.

16. In addition and in the alternative, the Applicant submits that pursuant to s.188(2) of the FW Act, the Commission has a discretion to find that an enterprise agreement has been genuinely agreed to despite a minor procedural or technical error.

17. In the event that the FWC determines that a new NERR was required to be given to employees in relation to the 2021 Agreement, the Applicant respectfully submits that failure to issue a new NERR is a ‘minor error’ of exactly the type that is sought to be cured by an exercise of the discretion in s.188(2) of the FW Act.

18. In the circumstances the error is a low level of non-compliance given that given the substance and content of the Agreements are identical, save for minor administrative amendments, and therefore has not prejudiced the ability of an employee to participate in and genuinely agree to (or vote against) the making of the 2021 Agreement.

19. The Applicant requests that the FWC exercises a discretion in this matter to find that in the event a new NERR was required to be issued, the 2021 Agreement has been genuinely agreed to, despite this minor error in compliance with s.173 of the FW Act.

The Commission’s continuing concern

[19] On 20 May 2021 my chambers wrote to the Employer in the following terms:

“You submitted that,

The Applicant did not commence a new notification time. No term in the Act has the effect that a withdrawal of an enterprise agreement from an approval process terminates a bargaining process or mandates that a new NERR must be issued in respect of a new notification time.

That is correct.

However, it is not the acting of withdrawing the application that, it is contended, ended bargaining.

The Commissioner notes that in AG2020/3847 (i.e. the previous agreement) the application was lodged on 11 December 2020.

It is the act of submitting an application for approval that terminated the bargaining in relation to that matter.

See: [Uniline Australia Limited [2016] FWCFB 4969]

[115] There is no substance to this submission. Once an application is made to the Commission, bargaining for the agreement has concluded albeit that the agreement might not be approved for a variety of reasons, including for example, that it does not pass the better off overall test. In that event, the employer could if it wished, initiate bargaining for a proposed agreement, the effect of which will be to trigger a notification time following which a valid Notice must be given.

Consequently, AG2021/4991 is a new agreement.

It seems therefore that it required a new NERR.  Without any new NERR having been given to employees an essential pre-approval step was not undertaken.  It seems therefore that, as a consequence, AG2021/4991 cannot be approved.

If you continue to disagree with this analysis you can address the Commission on it during the hearing next week.

If the point about the need for a new NERR is now conceded a Notice of Discontinuance should be filed in relation to AG2021/4991”.

NERR Issue – Employer’s further submissions

[20] Action Industrial Catering pressed approval of the 2021 Agreement despite it not having issued a new NERR.

[21] On 27 May 2021 Action Industrial Catering made the following submissions (footnotes omitted):

“5. The Commission has referred the Applicant to Appeal by Uniline Australia Limited [2016] FWCFB 4969 at [115]:

There is no substance to this submission. Once an application is made to the Commission, bargaining for the agreement has concluded albeit that the agreement might not be approved for a variety of reasons, including for example, that it does not pass the better off overall test. In that event, the employer could if it wished, initiate bargaining for a proposed agreement, the effect of which will be to trigger a notification time following which a valid Notice must be given.

6. In Re Broadspectrum (Australia) Pty Ltd [2018] FWCFB 6556 a Full Bench of the Commission assumed, without deciding, that the majority in Uniline was correct when it posited that bargaining ended upon lodgment of an application for approval of an agreement that had been “made” in accordance with s.182 of the FW Act. The Full Bench went on to observe that an employer, having had an application for approval of an agreement be declined by the FWC, could proceed to reach a valid agreement with a group of employees who had been issued with a valid NERR.

7. The approach in Uniline appears to be that if there is a failure to provide the NERR no later than 14 days after the notification time then the NERR is invalid and the Agreement is not capable of approval.

8. This rule in Uniline has no application in respect of an NERR that has been provided at an earlier date, as is contemplated in s.173(4) of the FW Act.

9. Uniline was also determined prior to the introduction of s.188(2) of the FW Act, by way of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018. Deputy President Masson of the Commission has observed, in respect of s.188(2) of the FW Act:

“188(2) would allow for the failure of the Employer’s compliance with s. 173(3) to be overcome if the Commission were satisfied firstly that the error was a ‘minor procedural or technical error’ and secondly that such error was not likely to have disadvantaged employees covered by the Agreement.”

10.On 11 December 2020, the Applicant lodged in the Commission an application to approve what is referred to in this matter as the ‘2020 Agreement’ in AG2020/3847 (2020 Agreement). This application was subsequently withdrawn by the Applicant on 23 March 2021. It was not determined or dismissed by the Commission. The Applicant was of the view that by withdrawing the application to approve the 2020 Agreement, the application had not been made and therefore no step had been taken to bring bargaining to an end.

11.The evidence is that the Applicant then proceeded with an intention to make the same agreement with the employees.

12.In NTEU v Swinburne University of Technology [2015] FCAFC 98, a majority of the Full Court had this to say about the scheme of bargaining under the FW Act:

22. Putting these provisions together in the chronological order which is implied by their terms, the following is the scheme contemplated. First, the employer agrees to bargain or initiates bargaining. Secondly, there is then a period of 14 days during which the employer gives the representational rights notices to the employees who were employed when the employer agreed to bargain. Thirdly, bargaining takes place. Although that process is not directly relevant to the subject here being considered, it should be noted that at least 21 days must pass after the giving of the last representational rights notification and the employer’s request under s 181(1). But there appears to be no outer limit to that period. Fourthly, the employer gives a copy of the agreement upon which it is proposed that the employees should vote, and other required materials, to the employees employed at that time. Fifthly, no more than seven days later, the employer requests the employees who are employed at that time to approve the agreement by voting for it. Sixthly, when a majority of those employees who cast a valid vote approve the agreement, the agreement is made.

23. It will be seen that, broadly, this scheme of things is divided into three stages: pre- bargaining steps, bargaining, and the making of the agreement. As noted above, although there are specific time limits for the taking of some of the required, or permitted, steps, there is no time limit on bargaining. There is no reason why bargaining may not take many months, and we may, I consider, take judicial notice of the fact that it sometimes does. The legislature must have contemplated that employees would, in the normal course of labour turnover, come and go during an extended bargaining period. There should, therefore, be no assumption that the employees employed at the notification time for the agreement under s 173 would be the same employees as those employed “at the time” of the provision of a copy of the agreement under s 180, or as those employed “at the time” of the employer’s request under s 181.

24. Indeed, in my view, the legislature must be taken to have made the contrary assumption. The architecture of these provisions inescapably involves the perception that those who are provided with a copy of the agreement and are requested to vote, on the one hand, need not be the same as those who were, at some previous point, notified of their representational rights, on the other hand. Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time. No other conclusion makes sense of the statutory scheme. (emphasis added)

13.These observations are entirely apposite to what has transpired in this matter.

Section 173(4)

14.The Applicant took reasonable steps to issue an NERR to all relevant employees on or around 20 August 2020. The Applicant’s primary submission is that it was not required to commence a new notification time, and issue a new NERR at any later time on the understanding that bargaining had never ended.

15.In addition and in the alternative, section 173(4) of the FW Act expressly contemplates that the NERR may be given to an employee “within a reasonable period before the notification time”. On the evidence it is open to the Commission to conclude that:

a).if bargaining (in respect of the 2020 Agreement) ceased upon lodgement of an application to approve that enterprise agreement with the Commission on 11 December 2020;

b).the Applicant withdrew its application for approval of the 2020 Agreement on or around 23 March 2021;

c).on 26 March 2021, the Applicant informed all relevant employees in writing of its intention to make in effect the same Agreement; then

d). the notification time in respect of the proposed 2021 enterprise agreement was 26 March 2021, pe s.173(2) FW Act.

16.The NERR was issued on 20 August 2020. That is, in the respectful submission of the Applicant, within a reasonable period of time before 26 March 2021.

Slip Rule

17.In addition, and in the alternative, in the event that the FWC determines that a new NERR was required to be given to employees in relation to the 2021 Agreement, the Applicant submits that pursuant to s.188(2) of the FW Act, the Commission has a discretion to find that an enterprise agreement has been genuinely agreed to despite a minor procedural or technical error.

18.An enterprise agreement will be found to have been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that pursuant to s.188(2):

a).the agreement would have been genuinely agreed but for minor procedural or technical errors made in relation to the requirements set out in s. 188(1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

b).the employees covered by the agreement were not likely to have been disadvantaged by the errors.

19.The first question to be determined is whether an agreement must be held as “made” in accordance with s.182 in order to enliven the slip rule at s.188(2).

20.This question was answered in Huntsman. “The purpose of s.188(2) which is plainly evident from its text is to allow for the approval in specified circumstances of agreements notwithstanding the occurrence of any minor procedural or technical defects of the identified type. The provision would be rendered nugatory if the provision was never utilised because of a prior determination that no agreement had been ‘made’ in accordance with s 182 as a result of the occurrence of such a defect. Accordingly it is not correct that a finding must first be made that the relevant agreement has been ‘made’ in accordance with s.182(1) or (2) before any consideration can be given to the application of s.188(2). That is because s.188(2), properly construed, contemplates that agreements which have not been ‘made’ may nonetheless be approved if the specified conditions in the new provision are satisfied.”

21.We will first turn to the first limb of the slip rule in s.188(2).

A) the agreement would have been genuinely agreed but for minor procedural or technical errors made in relation to the requirements set out in s. 188(1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights

22.The minor procedural or technical errors referred to at s.188(2) must be errors made in relation to:

a). s.180(2), (3) and (5) (which deal with pre-approval steps);
b). s.181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given);
c). s.173 (which requires that a notice that employees have a right to be represented by a bargaining representative is given to all employees who will be covered by the agreement, and who are employed at the notification time, no later than 14 days after the notification time); and
d).s.174 (which deals with the content and form of the NERR).

23. The issue here is with the rule that requires the NERR to be issued in compliance with s.173.This is a matter which is squarely in the Commissions remit to discretionally apply the law at s.188(2).

24. The question this is whether the error is a ‘minor procedural or technical error.’

25. A procedural requirement is one that requires an employer to follow a particular process or course of action e.g. providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time, s.173(3).

26. It follows that the Applicant’s failure to issue a NERR within 14 days of the notification time constitutes a procedural error.

27. Huntsman further states that an “error should be given its ordinary grammatical meaning and that a person may commit an ‘error’ even if their actions were intentional.”

“An act may be intentional, in the sense that it was a deliberate act, but nevertheless constitutes an ‘error’ because the person was unaware of the legal consequences of their action.”

28. Huntsman provides an example of an employer deliberately choosing to use an earlier version of the NERR, however is unaware of the consequences this action would have with compliance under s.174(1A), as opposed to circumstances where an employer embarks on a course of deliberate non-compliance, eg. knowing a NERR cannot go on company letter head but choosing to do this anyway. “Accordingly a proper distinction is to be made between an intentional act which unintentionally results in non-compliance with the procedural and/or technical requirements for the making of an enterprise agreement, and intentional non-compliance with those requirements, which will not constitute an error for the purpose of s.188(2).”12

29. It follows that the Applicant’s action in intentionally deciding not to issue a new NERR unintentionally resulted in non-compliance with the procedural requirement set out in s.173(3), given the Applicant was of the view that there was no new notification time given the nature of the continuous bargaining process in respect of substantially the same agreement.

30.We now turn to the meaning of ‘minor.’

31. “The determination of whether an error constitutes a ‘minor error’ within the meaning of s.188(2) calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which was not complied with and the relevant circumstances.”13

32. A way that an employee may have been disadvantaged by the non-compliance of s.173(3), to issue the NERR as soon as practicable but no later than 14 days after the notification time is that issuance of the NERR after 14 days could prevent them from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate.

33. Despite the Applicant not providing a copy of the NERR after it notified employees on 26 March 2021 of its intention to bargain for the 2021 Agreement, all employees who were eligible to vote on the 2021 Agreement, were the same employees who voted on the 2020 Agreement and who were provided with a copy of the NERR on 20 August 2020. The non-issuance of a subsequent NERR post 26 March 2021, did not disadvantage the employees. All employees were provided with all relevant information pertaining to the 2021 Agreement and invited to attend information sessions on the same.

34. Huntsman also makes clear that even what appears to be a more significant instance of non- compliance may still be categorised as a ‘minor error’, depending on the particular circumstances. For example, only informing the employees of the ss.180(3)(a) and (b) matters (that is the time and place the voting will occur and the voting method which will be used), 4 days before the voting process starts may be a ‘minor error’ where all of the relevant employees actually voted.

35. We will now turn to the second limb of the slip rule in s.188(2).

B. the employees covered by the agreement were not likely to have been disadvantaged by the errors.

36. Any disadvantage likely to have been suffered by employees, for the purpose of paragraph 188(2)(b), must relate to the employees’ ability to genuinely agree to the terms of the proposed agreement.

37. In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include a consideration of what occurred following the error, such as considering any steps taken by the employer to address the adverse impact of the non-compliance.

38. The Applicant did not provide a NERR in relation to the 2021 Agreement. However, the impact of this on the subsequent course of bargaining was nil. The bargaining representatives for the 2020 Agreement, were the same bargaining representatives for the 2021 Agreement because it was a continuous bargaining process.

39. Employees were not disadvantaged by not being issued a subsequent NERR in relation to the 2021 Agreement because they still were represented by bargaining representatives in relation to the 2021 Agreement.

40. This exact scenario is considered in Huntsman which states, “consider, for example, circumstances where through error an employer failed to give any notice of rights to representation to a group of employees, in contravention of s.173. It is conceivable that this error could be found not to have been likely to have disadvantaged the employees covered by the agreement for the purposes of s.188(2)(b), if the evidence established that the employees who did not receive a NERR were throughout the negotiations represented by bargaining representatives of their choosing.”

Other Examples

41. In a decision earlier this month, an application for approval of an enterprise agreement was approved by the Commission despite the employer not strictly adhering to the NERR requirements in s.173(3). The employer was L’Oreal. The notification time for the proposed agreement was 3 September 2020 and L’Oreal sent a copy of the NERR via email to one of its employees on 18 March 2021. All other employees were provided with a copy of the NERR no later than 14 days after 3 September 2020. The Commission in this case was satisfied that such an error constituted a minor procedural or technical error and was further satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As such, it was held the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

42.Even where a copy of the NERR was not provided to employees at all in accordance with s.173(1), only emailed directly to the bargaining representatives and Union Organiser, and simply placed on noticeboards, has been deemed to constitute a minor procedural or technical error for the purposes of s.188(2)(a) and found not to have likely disadvantaged employees.

43.It follows that if an agreement can be found to have been genuinely entered into despite a copy of the NERR not being positively sent to all employees who would be covered by the agreement, the current situation which sees employees being provided a copy of the NERR, albeit after 14 days of the notification time, must be considered a minor procedural error.

Conclusion

44.The Applicant respectfully submits that failure to issue a new NERR is a ‘minor error’ of exactly the type that is sought to be cured by an exercise of the discretion in s.188(2) of the FW Act.

45. In the circumstances the error is a low level of non-compliance given that given the substance and content of the Agreements are identical, save for minor administrative amendments, and therefore has not prejudiced the ability of an employee to participate in and genuinely agree to (or vote against) the making of the 2021 Agreement.”

NERR Issue - Consideration

[22] As a mere Commissioner I am compelled to follow the authority in both Uniline and Re Broadspectrum. Consequently, when Action Industrial Catering lodged its application for approval of the 2020 Agreement on 11 December 2020, bargaining for it ceased on that date. The 2021 Agreement is a new enterprise agreement. Bargaining for it prima facie required the issuing of a NERR. The NTEU v Swinburne University of Technology case referred to by the Applicant does not stand for a different proposition.

[23] The NERR must be given to each employee who will be covered by the proposed enterprise agreement as soon as practicable, and no later than 14 days, after the notification time. If the NERR is issued after the 14-day period it may be invalid. 2

[24] In the present matter the evidence is that on 26 March 2021 the Applicant’s Executive General Manager, Human Resources and HSQE, Lesley Jolly, wrote to employees about the withdrawal of the 2020 Agreement and an intention to work “on a new timeline to present the same Agreement back to you for further consideration.” Ms Jolly wrote of an intention to conduct “an educational webinar where we will go through all of the changes and provide you with an opportunity to ask any questions that you may have” and an intention to “ask you to vote on the Agreement once again…”.

[25] For all intents and purposes the letter of 26 March 2021 was when the Employer notified the employees of its intention to bargain 3 for the 2021 Agreement.

[26] To the extent that Ms Jolly referred to the “same agreement” she was under a misapprehension. She did not understand the import of the lodging of the 2020 Agreement (ceasing bargaining), nor the fact that the 2021 Agreement was, necessarily a new agreement. Bargaining had ended in relation to the 2020 Agreement and a NERR was required for the 2021 Agreement.

[27] Because 26 March 2021 was the notification time, Action Industrial Catering was required to issue a NERR within 14 days of that date (i.e. by 9 April 2021). It did not do so between 26 March 2021 and 9 April 2021.

[28] I accept that an employer could issue a NERR well in advance of indicating an intention to bargain. In this matter the Employer contends that is what it did when it issued the NERR in August 2020. The Employer submits that the NERR issued in respect of the 2020 Agreement can be considered the NERR for the 2021 Agreement because the agreements are essentially the same in content.

[29] I reject this contention. I do so because while the 2020 Agreement and the 2021 Agreement are largely the same, they are not identical. There are differences between the two agreements. The Applicant appropriately conceded the same at paragraph 26 of its 14 May 2021 submissions. 4

[30] I reject the submission that s.173(4) of the FW Act is relevant. It provides that,

(4)  An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

[31] The NERR given in respect of the 2020 Agreement was given on 20 August 2020. That is 7 months in advance of the notification time on 26 March 2021. That is not a “reasonable period before”. Seven months is outside the concept of a reasonable period.

[32] For these reasons I am satisfied that a new NERR was required in relation to the 2021 Agreement.

[33] The Applicant next contends that the Commission, as presently constituted, should apply something akin to a “slip rule” relying upon the operation of section 188(2) of the FW Act. I note that s.188(2) was legislated for after the decision in Uniline.

[34] In its submissions (above) the Applicant has correctly set out the relevant principles. I do not need to repeat them.

[35] The failure by the Applicant in this matter is that it did not issue a NERR in relation to the 2021 Agreement as required by s.173 of the FW Act. It was a failure to follow the correct procedure. I accept that such a failure can fall within the purview of s.188(2). However, the failure must be a “minor procedural or technical error”.

[36] In the present matter there was an intentional act/decision made not to issue a new NERR. It had an unintentional result of the Applicant not complying with s.173 of the FW Act. It was a procedural error.

[37] Noting the history of the 2020 Agreement and the making of the 2021 Agreement (including the fact that bargaining for the 2021 Agreement commenced a matter of days after the application for approval of the 2020 Agreement was withdrawn) and the contents of the letter of 26 March 2021, I am further satisfied that the procedural error was minor. The continuum of bargaining in the mind of Ms Jolly, was likely also in the mind of the employees, so too their right to be represented. The evidence is that the same bargaining representatives continued in the process.

[38] I also draw some comfort from the sameness of the voting pool and the closeness of results of voting as between the vote on the 2020 Agreement and the 2021 Agreement. A better explanation about the terms and the effect of the 2021 Agreement was provided than was provided in respect of the 2020 Agreement. When employees came to vote (more properly informed) a lesser percentage of employees voted to approve the 2021 Agreement. However, it was still a significant majority vote. There is simply no evidence that employees were disadvantaged by the failure to provide a new NERR.

NERR Issue - Conclusion

[39] The employer did not issue a NERR as required by s.173 of the FW Act. For the reasons set out above, pursuant to s.188(2), I am satisfied that the 2021 Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.173 of the FW Act. I am satisfied that the employees covered by the 2021 Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the 2021 Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Conclusion

[40] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[41] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the 2021 Agreement and that the undertakings will not result in substantial changes to the 2021 Agreement. The undertakings are taken to be a term of the 2021 Agreement.

[42] The 2021 Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2021. The nominal expiry date of the 2021 Agreement is 29 June 2024.

COMMISSIONER

Annexure A

 1   <AE425598>

 2   Transport Workers’ Union of Australia v Hunter Operations Pty Ltd [2014] FWC 7469 (Hatcher VP, 30 October 2014) at paras 69–79; Uniline Australia Limited [2016] FWCFB 4969 (Gostencnik DP, Riordan C, 25 August 2016) at paras 55–56, 110–113; see also Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019).

 3 Fair Work Act s.173(2).

 4   Court Book pp 244 – 245.

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<AE511998  PR731125>