City Concrete Pumping Pty Ltd

[2020] FWCA 1157

[2020] FWCA 1157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City Concrete Pumping Pty Ltd
(AG2019/4848)

CITY CONCRETE PUMPING PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 5 MARCH 2020

Application for approval of the City Concrete Pumping Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the City Concrete Pumping Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by City Concrete Pumping Pty Ltd. The Agreement is a single enterprise agreement.

[2] The employer provided employees with the relevant details of the vote on 8 November 2019. However, on 29 November 2019, the employer informed employees of a subsequent change in the ballot date which resulted in employees only receiving three days’ notice of the vote. The change in the date of the vote means that s.180(3) of the Act has not been strictly complied with. The Applicant submits that this amounts to a minor error and employees have not been disadvantaged by the error. The Applicant submits the employees of the site have experience with the enterprise bargaining process and the changed date was to facilitate greater participation of employees in the vote due to the demand on work patterns which would have otherwise reduced employee participation in the vote if the original voting date had remained the same.

[3] The Applicant further submits the employer took significant steps to ensure employees were aware of and participated in the vote including providing employees with verbal and written advice of the rescheduling of the vote, advising employees by SMS of the rescheduling of the vote, sending employees a reminder via SMS on the day of the vote that the ballot was closing that day and specifically following up with employees who had not voted.

[4] I note that 17 out of 21 employees cast a valid vote and 16 employees voted to approve the Agreement. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). I am further 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 s.188(2) of the Act.

[5] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] The Agreement is approved and in accordance with s.54, will operate from 12 March 2020. The nominal expiry date of the Agreement is 4 March 2024.

COMMISSIONER

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Annexure A