Civil & Allied Technical Construction Pty Limited T/A CATCON

[2019] FWCA 6504

[2019] FWCA 6504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Civil & Allied Technical Construction Pty Limited T/A CATCON
(AG2019/2743)

CATCON NEW SOUTH WALES AND AUSTRALIAN CAPITAL TERRITORY RENEWABLE ENERGY CIVIL CONSTRUCTION WORKPLACE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BULL	SYDNEY, 24 SEPTEMBER 2019

Application for approval of the CATCON New South Wales and Australian Capital Territory Renewable Energy Civil Construction Workplace Agreement 2019-2023.

[1] An application (Form F16) has been filed by Civil & Allied Technical Construction Pty Limited T/A CATCON(the employer) for the approval of an enterprise agreement known as the CATCON New South Wales and Australian Capital Territory Renewable Energy Civil Construction Workplace Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The Commission raised with the employer that the voting notice to employees appeared to have been given out less than 7 clear days before voting commenced, as the employer stated in its F17 that employees were notified of the voting time and process on 16 July 2019 and voting commenced on 23 July 2019.

[3] Sub-sections 180(3) and (4) of the Act require the employer to take all reasonable steps to notify employees of the voting time and process by the start of the ‘access period’. The ‘access period’ is the 7 day period ending immediately before the start of the voting process. The Full Bench in Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd[2018] FWCFB 2732 held that the 7 day period must be 7 clear calendar days. The employer in this instance appears to have given the employees only 6 clear days’ notice.

[4] The Commission advised the employer that the day on which the voting process commences is not to be counted in determining the start of the ‘access period’ as this is not a clear day. As the voting process commenced on 23 July 2019, the ‘access period’ ended at midnight on 22 July 2019 and therefore commenced at the beginning of 16 July 2019, being 7 clear days immediately before the start of the voting process. Accordingly, the employees should have been given the notice of vote before the start of 16 July 2019, or by midnight on 15 July 2019.

[5] The employer submitted that its non-compliance with s.180(4) of the Act was unintentional and should be characterised by the Commission as a minor procedural or technical error pursuant to s.188(2)(a) of the Act.

[6] Section 188(2) of the Act provides as follows:

“(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.”

[7] The Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 considered the application of s.188(2) of the Act, and held that ss.188(1) and (2) of the Act are to be approached sequentially.

[8] I am satisfied that the employer’s non-compliance with s.180(4) of the Act is a minor technical error and that, but for this minor technical error, the Agreement would have otherwise been genuinely agreed to within the meaning of s.180(1) of the Act. I note that all 5 of the employees covered by the Agreement voted in favour of approving the Agreement and would not be likely to suffer any disadvantage by the error.

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

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 31 August 2023.

DEPUTY PRESIDENT

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