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

Printed by authority of the Commonwealth Government Printer

Capral Limited, trading as Capral Aluminium, sought approval of its Erskine Park Regional Distribution Centre Enterprise Agreement 2019 in a case before the Fair Work Commission. The agreement was intended to cover employees of Capral Aluminium at the Erskine Park distribution centre, addressing various employment terms and conditions. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission involved assessing whether the agreement was a bona fide enterprise agreement, as defined by the Act. Key considerations included whether the agreement was negotiated genuinely and in good faith, whether it covered a relevant bargaining unit, and whether it complied with the procedural requirements outlined in the legislation. Additionally, the Commission needed to determine whether the agreement met the minimum standards prescribed by the Act and whether it was consistent with the public interest.

The Commission found that the agreement was indeed a genuine enterprise agreement. It was negotiated in good faith, covered the appropriate bargaining unit, and adhered to the procedural requirements. Furthermore, the agreement satisfied the minimum standards and did not contravene any public interest considerations. The Commission concluded that the agreement was fair and reasonable in all the circumstances and approved it accordingly.

The Fair Work Commission granted approval for the Capral Limited Erskine Park Regional Distribution Centre Enterprise Agreement 2019. This decision confirmed the agreement's validity and allowed it to take effect from the specified commencement date, ensuring that it would govern the employment conditions for the relevant employees.

Capral Limited T/A Capral Aluminium

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established