Capral Limited T/A Capral Aluminium

[2019] FWCA 8360

[2019] FWCA 8360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Capral Limited T/A Capral Aluminium
(AG2019/4260)

CAPRAL LIMITED ERSKINE PARK REGIONAL DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 10 DECEMBER 2019

Application for approval of the Capral Limited Erskine Park Regional Distribution Centre Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Capral Limited Erskine Park Regional Distribution Centre Enterprise Agreement 2019 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The statutory declaration (form F17) filed with the application indicated that employees were provided with a ‘final’ copy of Agreement on 17 October 2019. The vote to approve the Agreement occurred on 24 October 2019. This does not comply with the requirement in section 180(2) of the Act that employees have access to the written text of the agreement throughout the access period (being 7 clear days ending immediately before the day of the vote).

[3] Nevertheless, in the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration (form F17) I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[4] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[6] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[7] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[8] The application was not lodged within 14 days after the Agreement was made. Pursuant to subsection 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[9] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[10] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 17 December 2019. The nominal expiry date of the Agreement is 31 July 2022.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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