Enware Pty Ltd

[2024] FWCA 4092

[2024] FWCA 4092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Enware Pty Ltd

(AG2024/4209)

ENWARE ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 22 NOVEMBER 2024

Application for approval of the Enware Enterprise Agreement 2024

Introduction

1. Enware Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Enware Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 22 July 2024 and the Agreement was made on 24 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

1. On 22 July 2024 the Employer originally notified its employees of the time, place and method of a vote to be conducted on a proposed enterprise agreement. However, it did not issue a NERR until 72 days afterward. Accordingly, the NERR was not issued in accordance with s.173(3) of the Act, which requires a NERR to be issued ‘not later than 14 days’ after the notification time.

1. The Employer’s Form F17B declared that it had conducted a vote for the Agreement on 1 October 2024. Subsequently, it came to the Employer’s attention that it had inadvertently failed to provide the NERR to employees to be covered by the Agreement in accordance with s.173 of the Act. The Employer then issued a NERR on 2 October 2024 and waited at least 21 days before conducting a new vote on the Agreement. This vote proceeded on 24 October 2024.

1. The Employer provided submissions that this matter constituted a minor technical error. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter may be disregarded as it constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Section 186, 187, and 188

1. I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2024. The nominal expiry date of the Agreement is 22 November 2025.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

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