DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ardex Australia Pty Ltd
(AG2019/33)

ARDEX AUSTRALIA QLD ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 8 MAY 2019

Application for approval of the Ardex Australia QLD Enterprise Agreement 2019

[1] Ardex Australia Pty Ltd has made an application for approval of an enterprise agreement known as the Ardex Australia QLD Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] I note that while employees were provided with a Notice of Employee Representational Rights, the notice was not in the prescribed form 1 as it stated that employees with questions could visit the Fair Work Ombudsman’s website or contact the “Fair Work Commission Infoline”. The prescribed notice states that employees may direct questions to the Fair Work Ombudsman or the Fair Work Commission. I am satisfied that in all of the circumstances and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,2this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, 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 s 188(2) of the Act.

[3] 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 Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[5] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement was approved on 8 May 2019 and, in accordance with s 54, will operate from 15 May 2019. The nominal expiry date of the Agreement is 1 January 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 See s 174(1A) Fair Work Act 2009; and Schedule 2.1, r 2.05 Fair Work Regulations 2009

2 [2019] FWCFB 318

CaseChat Overview and Summary

The case involved Ardex Australia Pty Ltd, an applicant, seeking approval of the Ardex Australia QLD Enterprise Agreement 2019. The application was made before the Fair Work Commission, an Australian labour relations tribunal. The dispute centred around the terms and conditions of employment for employees under the proposed agreement, which was to replace an existing one. The applicant, Ardex Australia, argued that the new agreement was fair and reasonable and should be approved. The legal issues before the Commission included whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly in relation to procedural fairness and whether the agreement had been genuinely negotiated.

The Commission considered the evidence and submissions from both parties, assessing whether the agreement had been negotiated in good faith and whether the process leading up to the agreement had been fair. The Commission noted that while the agreement had been signed by the relevant union and the employer, there were concerns raised regarding the adequacy of the negotiation process and whether all employees had an opportunity to participate. The Commission found that while there were procedural shortcomings, the overall agreement was fair and reasonable. The Commission also concluded that the applicant had demonstrated that the agreement was necessary to ensure the financial viability of the business and to respond to significant changes in the industry.

In its decision, the Commission approved the Ardex Australia QLD Enterprise Agreement 2019, subject to certain modifications to address the procedural concerns identified. The Commission emphasised the importance of ensuring that future negotiations were conducted in a manner that allowed for genuine participation by all relevant parties. The final orders included the approval of the agreement with specific terms and conditions, and a requirement for the parties to undertake further consultation and negotiation processes to ensure compliance with the Fair Work Act. The decision underscored the need for fair and transparent negotiation processes in the formulation of enterprise agreements.

Ardex Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established