Enware Australia Pty Limited T/A Enware

[2021] FWCA 6849

[2021] FWCA 6849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Enware Australia Pty Limited T/A Enware
(AG2021/7915)

ENWARE AUSTRALIA ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 25 NOVEMBER 2021

Application for approval of the Enware Australia Enterprise Agreement 2021.

[1] Enware Australia Pty Limited T/A Enware (the Employer) has made an application for the approval of the Enware Australia Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] The Employer has acknowledged in their submissions that the notification of time, place and method of the vote was not provided seven clear days prior to the commencement of the voting process for the purposes of s.180(3) of the Act. The Employer submits that the access period for the proposed agreement started immediately after midnight on 1 October 2021 and that employees were notified by email at around 10:30am on 1 October 2021 – approximately 10 hours and 30 minutes after the access period. By 1:43pm all employees had access to a copy of the proposed agreement and the vote commenced at 10:00am on Friday, 8 October 2021.

[5] In considering whether a failure to comply with s.180(3) of the Act constitutes a ‘minor error’, the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 at [77]-[80] observed:

“[77] In relation to the first example given the relevant procedural requirement is set out in s.180(3):

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

[78] The ‘access period’ is ‘the 7-day period ending immediately before the start of the voting process’ (s.180(4)). It follows that the requirement to notify employees of the time and place at which the vote will occur and the voting method is to be met at least 7 clear days before the start of the voting process.

[79] Whether a failure to comply with s.180(3) constitutes a ‘minor error’ depends on the extent of the non-compliance and the circumstances. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. So, informing the employees of the matters in s.180(3)(a) and (b) ‘just after the start of the access period’, say 6 days before the start of the voting process, is likely to be a ‘minor error’ in most cases; but in some circumstances it may not be. For example, if it is the first agreement at the enterprise, the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’.

[80] It may also be the case that what appears to be a more significant instance of non-compliance may still be categorised as a ‘minor error’, depending on the particular circumstances. For example, only informing the employees of the ss.180(3)(a) and (b) matters 4 days before the voting process starts may be a ‘minor error’ where all of the relevant employees actually voted.”

[6] Given that 36 out of 45 employees covered by the proposed agreement cast a valid vote, I am satisfied that but for a minor procedural or technical error made in the pre-approval step stipulated at s.180(2), the proposed agreement would have been genuinely agreed to within the meaning of s.180(1) and the employees were not likely to be disadvantaged by the error.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AMWU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A