Barrett Burston Malting Co. Pty. Ltd. T/A Barrett Burston Malting Co Pty Ltd

[2022] FWCA 1881

[2022] FWCA 1881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Barrett Burston Malting Co. Pty. Ltd. T/A Barrett Burston Malting Co Pty Ltd

(AG2022/1456)

Barrett Burston Malting Co. Pty. Ltd. (Western Australia) Enterprise Agreement 2020

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 8 JUNE 2022

Application for approval of the Barrett Burston Malting Co. Pty. Ltd. (Western Australia) Enterprise Agreement 2020

1. An application has been made for approval of an enterprise agreement known as the Barrett Burston Malting Co. Pty. Ltd. (Western Australia) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Barrett Burston Malting Co. Pty. Ltd. T/A Barrett Burston Malting Co Pty Ltd. The Agreement is a single enterprise agreement.

1. 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. The undertakings are taken to be a term of the agreement.

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.

1. The Breweries and Bottleyards Employees' Industrial Union of Workers of Western Australia, 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.

1. The Employer states that it notified the relevant employees of the voting details on 26 April 2022. Question 25 on the Form F17 indicates that the date that voting for the Agreement commenced was 28 April 2022. Therefore the 7-day access period started on the first full day after 20 April 2022. As such, the employer did not notify the relevant employees of the voting details by the start of the access period in accordance with s.180(3) of the Act. The employer provided submissions in relation to this issue. The submissions outlined the circumstances which led to the error, supported by a statutory declaration made by Ms Rachel Zeliff, Director of Human Resources. In relation to the discretion conferred under s.188(2), the employer made the following submissions:

“The Company submits that the Commission can be satisfied that the Agreement has been genuinely agreed to by the employees having regard to the circumstances set out above, including because the employees had an active union representing them throughout the bargaining process, that the employees had been provided with a copy of the Agreement well in advance of the voting date, and where all of the employees attended the vote on 28 April 2022.

Furthermore, the Company submits that the employees covered by the Agreement are not likely to have been disadvantaged by the error but there would be substantial inconvenience to the Company and employees if the Agreement is not approved by the Commission as a further vote of the Agreement will need to take place.”

1. Furthermore, I note that at the time of the vote, 7 employees were covered by the Agreement, and all 7 employees cast a valid vote. In the circumstances and having regard to the submissions of the employer and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 June 2022. The nominal expiry date of the Agreement is 30 September 2023.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

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