Construction, Forestry, Maritime, Mining and Energy Union

[2020] FWCA 689

[2020] FWCA 689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/189)

HUON CONTRACTORS PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2020 - 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 11 FEBRUARY 2020

Application for approval of the Huon Contractors Pty Ltd and Employees Enterprise Agreement 2020 - 2024.

[1] An application has been made for approval of an enterprise agreement known as the Huon Contractors Pty Ltd and Employees Enterprise Agreement 2020 - 2024 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The statutory declaration (form F17) filed with the application indicates that employees were notified of the time, place and method of the vote on 14 January 2020 and that voting commenced on 20 January 2020. Thus, the employer did not take all reasonable steps to notify employees of the time, place and method of the vote by the start of the access period (being the 7 days ending immediately before the day of the vote) as required by s 180(3) of the Act.

[3] Nevertheless, in the circumstances, I am satisfied that having regard to the decision of the Full Bench 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 purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration (form F17) I am 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 subsection 188(2) of the Act.

[4] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[6] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[7] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[8] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 18 February 2020. The nominal expiry date of the Agreement is 10 February 2024.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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