CBG Systems Pty Ltd

[2019] FWCA 3261

[2019] FWCA 3261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CBG Systems Pty Ltd
(AG2019/637)

CBG SYSTEMS PTY LTD EMPLOYMENT AGREEMENT (EA)

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 MAY 2019

Application for approval of the CBG Systems Pty Ltd Employment Agreement (EA).

[1] An application has been made for approval of an enterprise agreement known as the CBG Systems Pty Ltd Employment Agreement (EA) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CBG Systems Pty Ltd. The Agreement is a single enterprise agreement.

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

[3] I note that Clause 7 and Schedule B are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 3.1.5 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[4] I note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were notified of the details of the vote via a memorandum to employees on 19 February 2019. The Applicant confirmed that all employees had been actively engaged throughout the bargaining for the Agreement and were notified of the time, place and method of the vote. I note that the vote commenced less than seven clear days later, on 22 February 2019. Also relevant is the fact that the F17 states that all 27 employees that will be covered by the Agreement cast a valid vote to approve the Agreement.

[5] In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd, 1  the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180 (3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error.2

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2019. The nominal expiry date of the Agreement is 31 January 2023.

DEPUTY PRESIDENT

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 1   [2018] FWCFB 2732.

 2   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.