Flick Anticimex Pty Ltd

[2019] FWCA 6063

[2019] FWCA 6063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Flick Anticimex Pty Ltd
(AG2019/2732)

FLICK HYGIENE SERVICES ENTERPRISE AGREEMENT 2019

Waste management industry
COMMISSIONER LEE	MELBOURNE, 4 SEPTEMBER 2019

Application for approval of the Flick Hygiene Services Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Flick Hygiene Services Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). 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 (Form F17) indicates that employees had either access to the Agreement or a copy of the Agreement by 10 July 2019. The Form F17 also indicates voting commenced on 11 July 2019.

[3] Further, I note that the Form F17 indicates that employees were notified of the details of the vote by a memo being distributed between 4 and 10 July 2019. I note that the vote commenced less than seven clear days later, on 11 July 2019. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd 1, the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180 (3) of the Act.

[4] Although it does not appear that some employees had access to a copy of the Agreement throughout the access period as required by s.180(2) of the Act and it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188 (2) of the Act and am satisfied that these errors constitute a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the errors. 2

[5] The Applicant has provided a written undertaking. A copy of the undertaking is attached to this decision at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

[6] Subject to the undertaking 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.

[7] I note that Clause 27.4 of the Agreement provides for an unpermitted deduction contrary to s.324 of the Act. Clause 27.4 of the Agreement is unenforceable.

[8] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

● Clause 23 – Abandonment of employment

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Transport Workers’ Union of Australia 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 September 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

Annexure A

 1   [2018] FWCFB 2732.

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

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