Aquamonix Pty Ltd

[2019] FWCA 7470

[2019] FWCA 7470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aquamonix Pty Ltd
(AG2019/3533)

AQUAMONIX MILPERRA SITE ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 29 OCTOBER 2019

Application for approval of the Aquamonix Milperra Site Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Aquamonix Milperra Site Enterprise Agreement 2019 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The statutory declaration filed with the application stated the Agreement was “released for review” on 28 August 2019, and “[f]inal alterations to the EBA were made and document distributed” on 4 September 2019. The vote to approve the Agreement also occurred on 4 September 2019. This does not comply with the requirement in section 180(2) of the Act that employees have access to the written text of the agreement throughout the access period (being the 7 days ending immediately before the day of the vote). The issue was raised with the Applicant.

[3] In response to the above, the Applicant submitted that providing the final copy of the Agreement on the day of the vote constituted a minor procedural or technical error which did not disadvantage employees because each of the differences between the copy provided on 4 September 2019 and the copy provided on 28 August 2019 were requested by employees and were minor in nature and/or beneficial to employees. A detailed explanation of each change to the earlier copy of Agreement resulting in the final copy of the Agreement was provided to the Commission.

[4] In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration, and the submissions and evidence described above, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[5] I am satisfied that each of the requirements of sections 186, 187 and 188 as are relevant to this application for approval have been met.

[6] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 5 November 2019. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

 1   [2019] FWCFB 318

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