Ball & Doggett Pty Ltd T/A Ball & Doggett

[2019] FWCA 540

[2019] FWCA 540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ball & Doggett Pty Ltd T/A Ball & Doggett
(AG2018/4741)

BALL & DOGGETT PTY LTD VICTORIA ENTERPRISE AGREEMENT 2018

Timber and paper products industry
COMMISSIONER LEE	MELBOURNE, 31 JANUARY 2019

Application for approval of the Ball & Doggett Pty Ltd Victoria Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Ball & Doggett Pty Ltd Victoria Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ball & Doggett Pty Ltd T/A Ball & Doggett. The Agreement is a single enterprise agreement.

[2] I note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were notified of the time, place and method of the vote on 7 August 2018. I also note that the ‘Ballot Voting Procedure’ document indicates that certain employees were able to cast a vote on or prior to 14 August 2018. As such, the vote commenced less than seven clear days from the date employees were notified of the time, place and method of the vote. Also relevant is the fact that the F17 states that 73 employees will be covered by the Agreement, 61 employees cast a valid vote and 58 employees voted to approve the Agreement. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd 1, the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180(3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188(2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this agreement are not likely to be disadvantaged as a result of the error.2

[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, 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] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 15 - Casual Employees;

•  Clause 19 - Annual Leave;

•  Clause 30 - Redundancy.

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 February 2019. The nominal expiry date of the Agreement is 1 July 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE501529  PR704401>

Annexure A

 1   [2018] FWCFB 2732.

 2   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.