Border Express Pty Ltd
[2023] FWCA 1730
•20 JUNE 2023
| [2023] FWCA 1730 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Border Express Pty Ltd
(AG2023/1702)
BORDER EXPRESS PTY LTD TRANSPORT EMPLOYEES ALBURY ENTERPRISE AGREEMENT 2023
| Road transport industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 JUNE 2023 |
Application for approval of the Border Express Pty Ltd Transport Employees Albury Enterprise Agreement 2023
Border Express Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Border Express Pty Ltd Transport Employees Albury Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
Some of the employees covered by the Agreement were not provided with a copy of the notice of employee representational rights (NERR) until later than the 14 days prescribed by s 173(3) of the Act. It follows that the Commission is unable to conclude, having considered s 188(1), that the Agreement has been genuinely agreed to. However, a failure to comply with a procedural requirement may constitute a ‘procedural error’ within the meaning of s 188(2)(a). A procedural requirement is one which requires an employer to follow a particular process or course of action. For example, providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time.
The underlying purpose of s 173(3) is ensure that the relevant employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner.[1] Where employees received the NERR later than the 14 day period, it may be the case that this prevented them from attending initial bargaining meetings, and therefore may keep them from effectively influencing the bargaining process even after they participate.[2] However, there was no evidence before me to suggest that this was the case. I am satisfied that, notwithstanding the delay in providing the NERR to some employees, those same employees were provided with a reasonable period before bargaining commenced to exercise their representational rights. It follows that I am satisfied that the failure to provide the last NERR in the requisite period to some employees was a minor procedural requirement in light of that which has been observed. The relevant employees were unlikely to be disadvantaged by such error, and I do not consider it to be one that stands in the way of the approval of the Agreement.
On the basis of the material contained in the application and accompanying declarations, 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.
The Agreement was approved on 20 June 2023 and, in accordance with s 54, will operate from 27 June 2023. The nominal expiry date of the Agreement is 13 August 2026.
DEPUTY PRESIDENT
[1] Huntsman Chemical Company Australia Pty Ltd [2019] FWCFB 318, [74].
[2] Ibid.
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