Coates Hire Operations Pty Limited T/A Coates

[2024] FWCA 3579

[2024] FWCA 3579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Coates Hire Operations Pty Limited T/A Coates

(AG2024/3254)

COATES NATIONAL AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 11 OCTOBER 2024

Application for approval of the Coates National Agreement 2024

Introduction

1. Coates Hire Operations Pty Limited T/A Coates. (the Employer) has made an application for approval of an enterprise agreement known as the Coates National Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 6 November 2023, and the Agreement was made on 10 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

1. As identified on its Form F17B, the Employer issued a NERR via email to all of its employees on 6 November 2023, bar two employees who were omitted from the recipient list. At this time, the Employer also arranged for copies of the NERR to be placed on noticeboards at each of the Employer’s premises to be covered by the proposed Agreement. The Employer also instructed all of its managers to inform employees that the NERR had been issued to them via email and that copies of the NERR had been placed on noticeboards.

1. On or around 15 April 2024, the Employer became aware that two employees had not been provided with an emailed copy of the NERR, and took steps to issue the NERR to those employees.

1. The Employer provided submissions that:

(a)It had taken all reasonable steps to give the NERR to employees on or around 6 November 2023; or in the alternative,

(b)The unintentional omission of two employees from the email attaching the NERR constituted a minor technical error and that no employees were disadvantaged by the error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) Precedence Term

1. Clause 36 of the Agreement states as follows:

Paid Parental Leave will be provided by Coates to eligible Employees in accordance with the Parental Leave Policy in place at the time the leave is taken.

1. However, this policy is not attached to the Agreement and was not provided in the material by the employer. The extent to which the operation of any Parental Leave policy may be inconsistent with the National Employment Standards (NES) is accordingly unknown.

1. I note that in accordance with the NES precedence term in Clause 5.8 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Time of filing application

1. The Agreement was made on 10 August 2024. The Employer filed the application to approve the Agreement on 26 August 2024, which is two days after the fourteen days to file an application of this nature pursuant to s.185(3) of the Act. The initiating documents filed by the Employer indicated that the Employer was of the view that the application was lodged in accordance with s.185(3), being ‘within 14 days after the Agreement is made’.

1. On 27 September 2024, the Commission wrote to the parties raising this issue among others identified upon review of the initiating documents. On 4 October 2024, the Employer provided its response which included submissions and supporting documents establishing that the application had been filed on 23 August 2024 by email (with a zipped file of attachments in support of the application). The Employer’s response indicated that, on 26 August 2024, the Commission’s Registry wrote to the Employer to notify them that the Commission was unable to accept or receive the documents in the zipped folder, and the application was accordingly refiled immediately on 26 September 2024.

1. The Act provides at s.185(2) that an application for the approval of an enterprise agreement must be accompanied by a signed copy of the Agreement and any declarations required by the procedural rules to accompany the application.[2] Accordingly, in the circumstances and having reviewed the submissions of the Employer, I consider that the application, though initially filed on 23 August 2024, was not validly filed until 26 August 2024 (when the Commission received the annexed documents).

1. In these circumstances, I am satisfied that it is fair to extend the period of time for the filing of the application to 26 August 2024 and do so pursuant to s.185(3)(b) of the Act.

Section 186, 187 and 188

1. 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.

Section 183 Bargaining Representatives

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Transport Workers Union (TWU), and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the CEPU, TWU, and AMWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 October 2024. The nominal expiry date of the Agreement is 18 October 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

[2] Fair Work Commission Rules 2024 (Cth), r.32.

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