CA & I Pty Ltd

[2019] FWCA 7169

[2019] FWCA 7169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

CA & I Pty Ltd
(AG2019/2449)

CA & I PTY LTD ENTERPRISE AGREEMENT 2019 - 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BULL	SYDNEY, 1 NOVEMBER 2019

Application for approval of the CA & I Pty Ltd Enterprise Agreement 2019 - 2022.

[1] An application (Form F16) has been filed by CA & I Pty Ltd(the employer) for the approval of an enterprise agreement known as the CA & I Pty Ltd Enterprise Agreement 2019 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The employer has provided undertakings regarding the following:

•  Payment of redundancy for employees employed for less than 12 months;

•  Ordinary hours;

•  Time worked after 12pm on a Saturday;

•  Payment of leave loading;

•  Clause 37 – Abandonment of employment;

•  Meal and crib allowance; and

•  Clause 16(g) of the Agreement regarding RDOs during extended inclement weather.

[3] The undertakings are attached at the end of the Agreement. I am satisfied pursuant to s.190(3) of the Act that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial change to the Agreement. Pursuant to s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement.

[4] The Commission raised with the employer that it appeared the vote did not occur at least 21 days after the last Notice of Employee Representational Rights (NERR) was given to the employees as required under s.181(2) of the Act. The employer in its F17 – Statutory Declaration advised that that the last NERR was given on 5 June 2019 and the vote commenced on 26 June 2019.

[5] The employer in response advised that the closing date of the vote was more than 21 days after the NERR was given. Staff were not required to finalise their vote until 28 June 2019 which was 23 days after the NERR was given. The employer further submitted that the vote was overwhelmingly in favour of the Agreement and it is unlikely that one additional days’ notice would have changed the vote result.

[6] The Commission also raised with the employer that the Agreement appears to incorporate the Building and Construction General On-site Award 2010 (the Award) and requested the employer to advise when a copy of the Award was provided to employees as required under s.180(2) of the Act. The employer initially advised that it referred employees to the Award but did not provide a copy of the Award to each member of staff. The Commission advised the employer that its response did not satisfy the concern about compliance with s.180(2) of the Act and this raised an issue about whether the Agreement was genuinely agreed to having regard to s.188(1)(a)(i) of the Act. The employer was invited to make further submissions as to whether s.188(2) of the Act is applicable in respect of this issue.

[7] The employer submitted in response that while it now understands that a copy of the Award should have accompanied the Agreement, a full copy of the Agreement was provided to employees well in advance of the 7 day requirement allowing staff more than sufficient time to make comparisons should they have wished to.

[8] The employer further submitted that some of its staff were employed by the employer during its previous enterprise agreement 2016-2019 (previous agreement), and all new staff signed their acceptance of the new Agreement on joining the company. The employer submitted that as the Agreement is largely the same as the previous agreement, it does not believe that providing a copy of the Award would have changed the outcome of the vote.

[9] In respect of the above issues, the employer submitted that its non-compliance with ss.180(2) and 181(2) of the Act was unintentional and should be characterised by the Commission as a minor procedural or technical error pursuant to s.188(2)(a) of the Act.

[10] Section 188(2) of the Act provides as follows:

“(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.”

[11] The Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 considered the application of s.188(2) of the Act, and held that ss.188(1) and (2) of the Act are to be approached sequentially.

[12] I am satisfied that the employer’s non-compliance with ss.180(2) and 181(2) of the Act is a minor technical error and that, but for this minor technical error, the Agreement would have otherwise been genuinely agreed to within the meaning of s.180(1) of the Act. I note that 9 of the 11 employees covered by the Agreement voted in favour of approving the Agreement and would not be likely to suffer any disadvantage by the error.

[13] Subject to the undertakings and the considerations 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.

[14] I note that the employer also provided undertakings regarding clause 9 of the Agreement, being the flexibility term, as well as clause 8 of the Agreement, being the consultation term. The employer was advised that the Act does not provide for undertakings to be provided for deficiencies in the mandated flexibility and consultation clauses and that the model flexibility and consultation terms would be incorporated into the Agreement.

[15] Accordingly, pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model consultation term is attached at the end of the Agreement.

[16] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is also taken to be a term of the Agreement. A copy of the model flexibility term is attached at the end of the Agreement.

[17] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is three years from the date of approval.

DEPUTY PRESIDENT

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