Ealwin Pty Ltd

[2020] FWCA 4200

[2020] FWCA 4200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ealwin Pty Ltd
(AG2020/1923)

EALWIN PTY LTD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 10 AUGUST 2020

Application for approval of the Ealwin Pty Ltd Enterprise Agreement 2020.

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

[2] Upon reviewing the application, I requested copies of email correspondence referred to in the Form F17 filed by Ealwin and then conducted a Mention on 31 July 2020.

[3] The email correspondence provided by Ealwin indicates it sent the employees the Notice of Employee Representational Rights (NERR) on 26 May 2020. At the Mention, both the representative from Ealwin Pty Ltd and one of the employee bargaining representatives outlined that the Agreement was to be a rollover agreement for the Ealwin Pty Ltd Enterprise Agreement 2014 (the previous Agreement), 1 with updated references to relevant legislation inserted and the provision of increased rates of pay. The negotiations occurred over two separate discussions and the outcome was an agreement with minimal additional changes to the previous Agreement. Drafting of the Agreement was then undertaken by Ealwin.

[4] I have noted that on 11 June 2020, Ealwin sent an email to the employees, attaching a copy of the Agreement and advising there would be a telephone call for the purposes of discussing it on Tuesday 16 June 2020. As the access period for the Agreement in this matter covered 11 June 2020 – 17 June 2020 inclusive, an issue required further consideration and I discussed it with the representative from Ealwin and one of the employee bargaining representatives at the Mention.

[5] While s.180(3) of the Act outlines that the employer must take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method that will be used by the start of the access period, it was unclear as to whether this occurred. While the representative from Ealwin Pty Ltd advised that she confirmed with the two employees that voting would commence on 18 June 2020 and it would be by email, she also thinks she may have outlined this earlier, perhaps as early as when the NERR was distributed or at some stage between 11 June 2020 and 16 June 2020. The employee bargaining representative who attended the Mention also recalled that the voting process may have been discussed before 16 June 2020, perhaps on or around 11 June 2020.

[6] There is therefore some doubt as to whether the two employees were notified of the time and place at which the vote would occur and the voting method that was to be used by the start of the access period. However, I am nonetheless satisfied that even if this was the case, the employees were not likely to have been disadvantaged as a result and that the Agreement has been genuinely agreed notwithstanding this procedural error, which having regard to the circumstances before me, I consider minor. 2 This is because even if only notified of the matters required under s.180(3) of the Act on 16 June 2020, the two employees still had almost four full days before the voting for the Agreement was to conclude. Secondly, the voting was conducted by email and both of the employees cast a vote within the required time.

[7] I observe that the Agreement is to be read in conjunction with the National Employment Standards (NES) and wherever the Agreement gives an employee an entitlement that is the same as an entitlement under the NES, the provisions of the NES relating to the NES entitlement apply as a minimum standard to the Agreement entitlement.

[8] Accordingly, on the basis of the material contained in the application and accompanying statutory declaration, together with my conclusion at paragraphs [6] 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.

[9] The Agreement is approved and, in accordance with s.54, will operate from 17 August 2020. The nominal expiry date of the Agreement is 11 August 2024.

DEPUTY PRESIDENT

 1   [2014] FWCA 3999.

 2 Fair Work Act 2009, s.188(2).

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