Baxter Laboratories Pty Ltd

[2021] FWCA 5807

[2021] FWCA 5807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Baxter Laboratories Pty Ltd
(AG2021/6844)

BAXTER LABORATORIES PTY LTD ENTERPRISE AGREEMENT 2021

Scientific services
COMMISSIONER LEE	MELBOURNE, 14 SEPTEMBER 2021

Application for approval of the Baxter Laboratories Pty Ltd Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Baxter Laboratories Pty Ltd Enterprise Agreement 202 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Baxter Laboratories Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I note that the Form F17 indicated that the Employer notified the relevant employees of the time, place and method of the vote on 4 August 2021 and that voting commenced on 11 August 2021. The Form F17 also indicated that at the time of the vote 42 employees were covered by the Agreement, and that 37 of these employees cast a valid vote, with 34 employees voting to approve the Agreement. It appeared from this information that the relevant employees were provided with the voting details 6 clear days prior to the commencement of voting, rather than 7 clear days prior to the commencement of voting as required by s.180(3) of the Act. I sought submissions to address this issue. The Employer made submissions which can be summarised as follows:

•  On 4 August 2021, all employees were handed a notice informing them of the time, place and method of vote.

•  On 11 August, when all employees convened for the vote, it became clear that the access period had not been complied with. To ensure that employees were provided with the voting details 7 clear days prior to the commencement of voting, the vote was moved to 12 August 2021.

•  Furthermore, the employee bargaining representatives requested that the vote be conducted via secret ballot and not show of hands. As such, the method was also changed.

•  Employees were notified of the new voting details on 11 August 2021, and the vote commenced on 12 August 2021.

•  This error did not disadvantage employees.

[5] I am satisfied having regard to the Employer’s submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1 that the matter outlined in paragraph [4] constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[6] The United Workers’ Union 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 September 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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Printed by authority of the Commonwealth Government Printer

1   [2019] FWCFB 318.

Annexure A