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

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCFB 2732.

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

CaseChat Overview and Summary

The applicant, CBG Systems Pty Ltd, applied to the Federal Circuit and Family Court of Australia for approval of an employment agreement. The agreement was intended to be registered under the Fair Work Act 2009. The application followed a request by an employee, who sought to have the agreement approved under section 235 of the Act, as they had not agreed to the terms of the employment. The employee argued that the agreement was unfair as it did not provide adequate protections for casual employees.

The central legal issue before the court was whether the employment agreement was fair. The court had to determine if the agreement provided for terms and conditions that were no less favourable than the applicable award or registered agreement. The court also had to consider whether the agreement provided adequate protections for casual employees, including reasonable notice periods and the ability to convert to permanent employment under certain conditions.

The court found that the employment agreement was fair and approved its registration. The agreement provided terms and conditions that were not less favourable than the applicable award, and it included provisions for reasonable notice periods and the potential for conversion to permanent employment. The court noted that the agreement also contained provisions for additional benefits, such as paid parental leave and superannuation contributions, which were more favourable than the minimum requirements under the award. The court concluded that the agreement was fair and approved its registration.

The final order of the court was that the employment agreement be approved for registration under section 235 of the Fair Work Act 2009. The court directed that the agreement be registered with the Fair Work Commission and that it would be binding on the employee from the date of registration. The court also noted that the employee had the right to seek review of the agreement's registration if they believed it was unfair at a later date.

CBG Systems Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established