Falck (Victoria) Pty Ltd T/A Falck (Victoria) Pty Ltd

[2023] FWCA 966

[2023] FWCA 966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Falck (Victoria) Pty Ltd T/A Falck (Victoria) Pty Ltd

(AG2023/644)

CFMMEU / FALCK VICTORIA HAZELWOOD MINE ENTERPRISE AGREEMENT 2022

Fire fighting services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 APRIL 2023

Application for approval of the CFMMEU / Falck Victoria Hazelwood Mine Enterprise Agreement 2022

1. An application has been made by Falck (Victoria) Pty Ltd (Employer) pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the CFMMEU / Falck Victoria Hazelwood Mine Enterprise Agreement 2022 (Agreement).

1. Question 20 of the Form F17 and an email attached to the Form F17 indicate that employees were notified of the vote on 22 February 2023 and question 25 of the Form F17 provides that the vote commenced the same day. This is less than the 7 clear days’ notice required by s 180(2) of the Act.

1. The Employer provided submissions on 30 March 2023 that employees were initially provided with the Agreement on 8 February 2022 in an email that indicated voting was to commence immediately. The voting was ceased and recommenced on 22 February and employees had in excess of 7 days to consider the Agreement. The Employer acknowledges the process did not meet the requirements of s 180(2) of the Act, however, submit that this concern can be remedied by s 188(2) of the Act. The Employer notes that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and its delegates were heavily involved in bargaining and communication with employees about the terms of the Agreement.  Further, the Agreement is largely a 'rollover' of the current enterprise agreement which covers the relevant employees.  The Employer therefore submits that the Agreement was genuinely agreed on the basis set out in section 188(2) of the Act and in turn that section 186(2)(a) has been satisfied.

1. In the circumstances and having regard to the submissions of the Employer and the decision  in  Huntsman  Chemical  Company  Australia  Pty  Limited  T/A  RMAX  Rigid Cellular Plastics & Others,[1] I am satisfied that the error constitutes a minor procedural error for  the  purpose  of  s.188(2)(a).  Further, I am satisfied  that  the  employees  covered  by  the Agreement were not likely to be disadvantaged by the error.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to 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.

1. The 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 2023. The nominal expiry date of the Agreement is 1 July 2024.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

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