Comms Aust No 1 Pty Ltd T/A Progility Technologies

[2022] FWCA 3743

[2022] FWCA 3743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Comms Aust No 1 Pty Ltd T/A Progility Technologies

(AG2022/4143)

Comms Aust No1 (CA) Field Technical Agreement 2019

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 27 OCTOBER 2022

Application for approval of the Comms Aust No1 (CA) Field Technical Agreement 2019

1. An application has been made for approval of an enterprise agreement known as the Comms Aust No1 (CA) Field Technical 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 Comms Aust No 1 Pty Ltd T/A Progility Technologies. The Agreement is a single enterprise agreement.

1. 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.

1. Subject to the undertakings referred to above, 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.

1. The Form F17 does not indicate whether employees were provided with access to, or a copy of the incorporated Electrical, Electronic and Communications Contracting Award 2020 (the Award) in accordance with s.180(2) of the Act. This was raised with the parties, and the Applicant provided the following submissions in response.

“The Applicant confirms that it did not separately provide a copy of the award to the employees.

The Applicant submits that the error was a “minor technical” error within the meaning of section 188(2)(a) of the FW Act and the employees covered by the agreement were not likely to have disadvantaged by the error (in relation to the section 188(1)(a)(i) and specifically s180(2)(a)(ii) of the FW Act).

The Applicant refers to the principles in Hunstman set out above.

Further, the Applicant notes that:

a)The employees were represented by the union show (sic) steward;

b)The employees had received a copy of the draft agreement approximately 2 years before the vote;

c)Changes made after that time were minor and not significant;

d)The agreement was essentially a ‘roll over’ agreement with changes made to reflect legislative requirements and rates;

e)The failure to provide a copy of the award to the employees was not intentional;

f)The employees who voted had an average tenure of 27 years and had previously been covered by an agreement that incorporated the award terms. That means, in effect, they were subject to the award terms already;

g)No employee asked for a copy of the award despite the express reference to the award in the draft agreement and final agreement which they were invited to vote on;

h)At the information session on 1 September 2022 conducted by the Applicant, no request or question was asked about the award; and

i)The summary of changes document (first provided to employees on 5 November 2021 expressly refers to the award and comparison of agreement terms.

The Applicant submits that the error was minor as employees were not denied effective access to the award or time to consider the award terms before making an informed decision to vote.

…

The Applicant refers to the case of Adchem (Australia) Pty Ltd (AG2021/6449) [2021] FWCA 4804 in which Commissioner Platt found that the employer’s failure to provide a copy of the Manufacturing and Associated Industries and Occupation Award 2020 was a minor error and one which did not substantially disadvantage employees as the agreement was essentially a ‘roll over’ agreement and the Commissioner found that the employees understood the agreement.

Reference is also made to Geocon Constructors (ACT) Pty Ltd T/A Geocon (AG2018/3411) [2019] FWC 5509. The Commission in that decision determined that the failure to provide a copy of the award (referenced through the reference to specific terms in the agreement, and not incorporated into the agreement) was a ‘minor’ error within the meaning of section 188(2) of the FW Act and that the error did not disadvantage employees (having regarding to their particular circumstances including that they had in effect, been subject to the award terms as part of the previous enterprise agreement).”

1. It is apparent that the incorporated Award was not provided to employees in accordance with s.180(2) of the Act. I provided the bargaining representatives for the Agreement an opportunity to provide any views in relation to my provisional view that the Agreement could be approved with the undertakings provided. There were no views expressed in response. I have considered the above submissions and I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 November 2022. The nominal expiry date of the Agreement is 31 July 2023.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

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