Donnelley Civil Pty Ltd

[2020] FWCA 5528

[2020] FWCA 5528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Donnelley Civil Pty Ltd
(AG2020/2919)

DONNELLEY CIVIL PTY LTD CW5 PLANT OPERATORS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 16 OCTOBER 2020

Application for approval of the Donnelley Civil Pty Ltd CW5 Plant Operators Enterprise Agreement 2020-2023.

[1] An application has been made for the approval of an enterprise agreement known as the Donnelley Civil Pty Ltd CW5 Plant Operators Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Donnelley Civil Pty Ltd (Donnelley Civil). The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Donnelley Civil, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] I have noted that the Notice of Employee Representational Rights (NERR) indicated that the name of the enterprise agreement Donnelley Civil was bargaining for was the Donnelly Civil Plant Operators Pty Ltd Enterprise Agreement (2018-2022). Donnelley Civil submits that this is capable of being categorised as a “minor error” as contemplated by s.188(2) of the Act and that I can be satisfied that the employees were not likely to have been disadvantaged by it, for the following reasons:

•  The bargaining process commenced in December 2018, so by the time the Agreement was made in September 2020, it was no longer appropriate to call the Agreement 2018-2022;

•  Throughout the bargaining process, a duration of three years was discussed such that the Agreement name was amended to 2020-2023; and

•  All Plant Operators employed by Donnelley Civil are classified as CW5 under the relevant Award, and this is a widely used term that the workforce understands. The inclusion of CW5 did not have the effect of including additional workers nor exclude any workers involved in the bargaining process and in fact, all employees who were involved for the duration of the bargaining process were CW5 Plant Operators.

[4] I am satisfied that this was a minor technical error and the employees were not likely to have been disadvantaged as a result and that the Agreement has been genuinely agreed notwithstanding it. 1

[5] Donnelley Civil has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement. The undertaking is taken to be a term of the Agreement.

[6] Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying statutory declaration and the submissions of Donnelley Civil outlined in paragraph [3] 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.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the CFMMEU, I note that the Agreement covers the CFMMEU.

[8] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 23 October 2020. The nominal expiry date of the Agreement is 23 October 2023.

DEPUTY PRESIDENT

Annexure A

 1   Fair Work Act 2009, s.188(2).

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