APT Management Services Pty Ltd T/A APA Group

[2022] FWCA 792

[2022] FWCA 792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

APT Management Services Pty Ltd T/A APA Group

(AG2022/269)

APA TRANSMISSION PIPELINES (NSW, VIC & SA EXCL MOOMBA) ENTERPRISE AGREEMENT 2022

Oil and gas industry
COMMISSIONER P RYAN	SYDNEY, 4 MARCH 2022

Application for approval of the APA Transmission Pipelines (NSW, VIC & SA excl. Moomba) Enterprise Agreement 2022

1. APT Management Services Pty Limited (the Applicant) has made an application for approval of an enterprise agreement known as the APA Transmission Pipelines (NSW, VIC & SA excl Moomba) Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement which covers two employers that are related bodies corporate, and therefore, single interest employers (s.172(5)).

Form F16 Application

1. The Form F16 Application failed to identify each employer covered by the Agreement. An amended Form F16 Application was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Form F17 Declaration

1. The Form F17 Declaration identified the notification time as 31 March 2021, which was after the issuing of the Notice of Employee Representational Rights on 22 February 2021. In response to this issue, the Applicant submitted that the response in the Form F17 Declaration was an error and provided supporting documents confirming the notification time was 15 February 2021. I consider it appropriate in the circumstances to allow a correction to the Form F17 Declaration and do so pursuant to s.586(a) of the Act.

Access to Incorporated Material

1. Clause 3.1(b) of the Agreement incorporates the Gas Industry Award 2020. It was unclear whether the incorporated award was provided or made available to employees and, if it was, how this occurred. I invited the Applicant to provide a response to this issue.

2. The Applicant confirmed that the incorporated award was not provided or made available to the employees. The Applicant submitted that this constituted a minor procedural or technical error taking into account:

·Multiple unions represented the employees during the bargaining process;

·The incorporated award is available in the public domain and was accessed and referred to by union delegates during the bargaining process; and

·That but for providing or making available the incorporated award, the Agreement was genuinely agreed to by the employees.

1. In addition to the submissions of the Applicant, I observe the current enterprise agreement incorporates the Gas Industry Award 2010 in the same way.[1]

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[2] that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

1. Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Regulation 2.06A Requirements

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

1. The employers have 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 Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement

Sections 186, 187, 188 and 190

1. 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.

Section 183

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) each being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the AMWU, the AWU and the CEPU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 March 2022. The nominal expiry date of the Agreement is 30 September 2023.

COMMISSIONER

[1] Clause 3.1(b) of the APA Transmission Pipelines (NSW, VIC & SA excl Moomba) Enterprise Agreement 2018.

[2] [2019] FWCFB 318.

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