Cockburn Cement Limited

[2021] FWCA 3690

[2021] FWCA 3690

FAIR WORK COMMISSION

DECISION

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

Cockburn Cement Limited
(AG2021/5600)

DONGARA UNION ENTERPRISE AGREEMENT 2021

Cement and concrete products
DEPUTY PRESIDENT BEAUMONT	PERTH, 25 JUNE 2021

Application for approval of the Dongara Union Enterprise Agreement 2021.

[1] Cockburn Cement Limited has made an application for the approval of an enterprise agreement known as the Dongara Union Enterprise Agreement 2021 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] There was an issue regarding compliance with s 180(5) of the Act. Whilst the evidence showed that during the bargaining period relevant employees had been kept abreast of the terms of the proposed Agreement and the effect of those terms, it was noted that the information sessions and meetings during the bargaining process, as well as the provision of summary progress updates sent to staff, were arguably matters that went to the negotiation of the Agreement, rather than the explanation of the final terms of the Agreement and their effect. 1

[5] The Applicant was provided with further opportunity to provide materials evincing compliance with s 180(5). Having reviewed those supplementary materials, I am satisfied that the Applicant took all reasonable steps to explain the terms of the Agreement and their effect.

[6] However, if I am wrong on this point, then it is the case that the Commission is unable to conclude, having considered s 188(1), that the Agreement has been genuinely agreed to. Consideration would therefore turn to s 188(2) of the Act and on this point, I am content to find, the Applicant made an error which constituted a minor procedural error.

[7] A failure to comply with a procedural requirement constitutes a ‘procedural error’ within the meaning of s 188(2)(a). 2 A procedural requirement is one which requires an employer to follow a particular process or course of action such as that required of s 180(5). The Full Bench in Huntsman outlined that what constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances.3 The purpose of s 180(5) is to ensure that employees understand the effect of the agreement that is to be voted on, enabling them to make an informed decision.

[8] The evidence before me shows that both the Applicant and the bargaining representatives of the Agreement went to great lengths to explain the terms of the Agreement and their effect. Notwithstanding that such explanations were predominately provided contemporaneously as each term of the Agreement was negotiated and finalised, I am of the view that if there was non-compliance with s 180(5), it was unintentional and no employee was disadvantaged.

[9] With respect to s 188(2)(b), it is accepted that in the context of the Act, the word ‘disadvantaged’ in and of itself suggests a deprivation, which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4. 4 However, the test refers to ‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’.5 The word ‘likely’ in s 188(2)(b), means ‘probable’, in the sense that there is an odds-on chance of it happening – the meaning being consistent with the ordinary and natural meaning of the word.6 In light of the particular circumstances of the employees at the time the error occurred (if it did occur), I am unable to find that any disadvantage, probable or otherwise, followed. It was apparent that the relevant employees were all positioned to consent to the Agreement in an informed manner.

[10] Subject to the undertakings referred to, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 as are relevant to this application for approval have been met.

[11] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Workers’ Union (together, the organisations),being bargaining representatives for the Agreement, have given notice under s 183 of the Act they want the Agreement to cover them. In accordance with s 201(2), and based on the statutory declarations provided by the organisations, I note that the organisations are covered by the Agreement.

[12] The Agreement was approved on 25 June 2021 and, in accordance with s 54, will operate from 2 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

 1   Health Services Union v Clinpath Laboratories Pty Ltd; Strath, Jenny and Others [2018] FWCFB 5694.

 2   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (‘Huntsman’).

 3   Huntsman [117].

 4   Huntsman [45] and [104].

 5   Huntsman [45] and [105].

 6   Huntsman [45] and [110].

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