DM Civil QLD Pty Ltd T/A Australian Civil Solutions

[2020] FWCA 1448

[2020] FWCA 1448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DM Civil QLD Pty Ltd T/A Australian Civil Solutions
(AG2019/4713)

AUSTRALIAN CIVIL SOLUTIONS 2022 EA

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 19 MARCH 2020

Application for approval of the Australian Civil Solutions 2022 EA.

[1] An application has been made for approval of an enterprise agreement known as the Australian Civil Solutions 2022 EA (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DM Civil QLD Pty Ltd T/A Australian Civil Solutions. The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly complaint with the requirements of ss.173, 174 and 181(2) of the Act as it was issued 27 days after the notification time, included additional content and was issued 9 days prior to the commencement of the vote. The Notice and procedure for the vote was otherwise compliant in all respects.

[3] I note that the employer had made a previous application which related to the same enterprise agreement (Previous Agreement) and was proposed to cover the same employees, which was withdrawn on 15 October 2019. The employees involved in the Previous Agreement are the same as those covered by this Agreement. The terms of the Previous Agreement are substantially the same as this Agreement. The employer informed employees of the reasons the Previous Agreement was discontinued and the fact they would recommence the bargaining and application process. The employer took reasonable steps to ensure employees were provided with the Notice and voting information, including by holding meetings with the employees and issuing emails to employees to explain the process.

[4] In the circumstances and having regard to the information provided in the Form F17 – Employer’s statutory declaration and the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, 1 I am satisfied that the errors relating to the Notice and vote constitute a minor procedural or technical error for the purposes of s.188(2)(a) and the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[5] 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.

[6] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[7] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[8] The Agreement is approved and in accordance with s.54, will operate from 26 March 2020. The nominal expiry date of the Agreement is 5 December 2022.

COMMISSIONER

Annexure A

 1   [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

<AE507465  PR717599>