Berendsen Fluid Power Pty Ltd

[2022] FWCA 2748

[2022] FWCA 2748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Berendsen Fluid Power Pty Ltd

(AG2022/3224)

Berendsen Fluid Power Pty Ltd (Sydney) Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 15 AUGUST 2022

Application for approval of the Berendsen Fluid Power Pty Ltd (Sydney) Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Berendsen Fluid Power Pty Ltd (Sydney) Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Berendsen Fluid Power Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 9 August 2022.

1. On 12 August 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters.

1. There was one employee of the Applicant who was on personal leave throughout the bargaining process and was not invited to vote or provided information about the proposed Agreement during the access period. This employee was a casual employee who was not engaged in the access period, and as such was not eligible to vote for the Agreement. As the employee was not eligible to vote for the Agreement, no issues arise out of a failure to provide the necessary information about the vote as required by s.180 of the Act.

1. It is noted that employees were notified of the access period and voting method on 15 July 2022, and voting commenced on 22 July 2022. As such, notification occurred 6 clear days prior to the commencement of voting, rather than the 7 clear days required by s.180(3) of the Act. In respect of this deficiency, I do not believe that the failure to provide the required information 7 clear days from the commencement of voting had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 9 February 2023.

COMMISSIONER

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