Fenner Dunlop Australia Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions

[2019] FWCA 5061

[2019] FWCA 5061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Fenner Dunlop Australia Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions
(AG2019/1776)

FENNER DUNLOP (ADELAIDE) ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 19 JULY 2019

Application for approval of the Fenner Dunlop (Adelaide) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Fenner Dunlop (Adelaide) Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fenner Dunlop Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] I note that the employer’s Statutory Declaration in support of the application for approval of an enterprise agreement (F17) indicates that the place of the vote was not communicated to the employees as required by s.180(3) of the Act. The Applicant in their submissions conceded that the voting notification did not specifically list the address of the place of voting, which was the workplace itself. In support of its application it was said by the Applicant that the inclusion of the hours of work as the voting time implied to the employees that the vote would take place during ordinary work hours and therefore it is reasonable to assume, as per past custom and practice, that the vote would take place at their workplace. The Applicant submitted that, given no alternative address was listed and all communications and negotiations took place at the workplace, a reasonable inference could be drawn that the vote would occur at the same location. I also note that the voting notification states that ‘voting will be by secret ballot and employees will be provided with a voting pack on the day of voting’. This supports the implication that the vote was to take place at the workplace. Further, I note that 4 of the 6 employees covered by the Agreement voted and all 4 voted in favour of the Agreement. I refer to s.188(2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of this error. 1

[3] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 July 2019. The nominal expiry date of the Agreement is 28 February 2021.

COMMISSIONER

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

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