Duratec Australia Pty Ltd T/A Duratec Australia

[2019] FWCA 3039

[2019] FWCA 3039

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Duratec Australia Pty Ltd T/A Duratec Australia
(AG2018/6811)

DURATEC AUSTRALIA ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 8 MAY 2019

Application for approval of the Duratec Australia Enterprise Agreement 2018.

[1] Duratec Australia Pty Ltd (Duratec) has made an application for the approval of an enterprise agreement known as the Duratec Australia Enterprise Agreement 2018 (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 Employer has provided written undertakings. A copy of the undertakings are attached as Annexure A. 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. No objection was raised.

[3] 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.

[4] There were two issues regarding compliance with s 174 of the Act. First, the notice of employee representational rights (Notice) that was issued to employee at the commencement of bargaining for the Agreement was an earlier version of the Notice. The second issue concerned the inclusion of a Duratec logo on the Notice and the use of a covering letter. Duratec stated that the errors were inadvertent and unintentional. Given the types of errors made 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 therefore turns to s 188(2).

[5] A failure to comply with a technical requirement will constitute a ‘technical error’ within the meaning of s 188(2)(a). 1 A technical requirement includes an obligation to comply strictly with the form and content of an instrument, such as the Notice.2

[6] The copy of the Notice lodged by the Applicant with its application for the approval of the Agreement was the Notice prescribed by Schedule 2.1 of the regulations immediately before 3 April 2017 (old NERR). The correct Notice for this Agreement was the one prescribed by Schedule 2.1 of the regulations that took effect from 3 April 2017. The Applicant mistakenly used the old NERR but had made no other changes to it, other than the text required by it including the employer’s name and the name of the enterprise agreement.

[7] In Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman), 3 the Full Bench considered that the old NERR was substantially the same as the post 3 April 2017 NERR.4 Whilst the provision of the old NERR constituted a minor technical error in relation to s 174, the Full Bench was satisfied that the employees covered by the Agreement would not likely be disadvantaged by the error. As was the case in Huntsman,I am satisfied that the mistaken provision of the old NERR to employees constituted a minor technical error.5  The employees were unlikely to be disadvantaged by such error, and I do not consider it to be one that stands in the way of the approval of the Agreement.6 

[8] With regard to the second issue, the Full Bench in Huntsman observed that the appropriate course is to treat the issuing of the Notice on company letterhead as a technical error. 7 The Full Bench concluded that this type of error constituted a minor technical error in relation to the requirements of s 174 of the Act.8 In all the circumstances, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by this particular minor technical error.

[9] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[10] The Agreement was approved on 3 May 2019 and, in accordance with s 54, will operate from 10 May 2019. The nominal expiry date of the Agreement is 2 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE503240  PR707938>

Annexure A

 1   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 [57].

 2   Ibid.

 3   Ibid.

 4   Ibid [131] – [132].

 5 Ibid [140].

 6   Fair Work Act 2009 (Cth) s 188(2).

 7   Huntsman [2019] FWCFB 318 [153]

 8   Ibid.