Freo Group Pty Ltd

[2022] FWCA 1951

[2022] FWCA 1951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Freo Group Pty Ltd

(AG2022/1727)

Freo Group Pty Ltd Kwinana Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 16 JUNE 2022

Application for approval of the Freo Group Pty Ltd Kwinana Agreement 2022

1. Freo Group Pty Ltd has made an application for the approval of an enterprise agreement known as the Freo Group Pty Ltd Kwinana Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The access period for the Agreement commenced on 19 May 2022.  The Applicant submitted that employees at this time were notified of the vote by email dated 19 May 2022 time stamped 2:59PM.  Regarding the notification of the vote, employees were informed that the voting method would be by way of show of hands, which would be take place on 27 May 2022.  The Applicant explained that a ballot by way of show of hands had been agreed upon by it, employees and the employees’ bargaining representative. 

1. However, on the day of the ballot, employees and their bargaining representative held a pre-ballot meeting to address any last-minute queries or concerns regarding the Agreement.  Whilst it had been agreed between the Applicant and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) that the vote would be conducted by way of show of hands, after the pre-ballot meeting, an official of the CFMMEU advised the Applicant that the employees now wished to conduct the ballot by way of a paper ‘secret ballot’.  The Applicant submitted that it agreed to the request and given it had undertaken secret ballots in the past, it arranged on the day of the vote for ballot papers to be printed and a sealed ballot box to be available.  Also arranged was a voting attendance sheet with the roll of voters.  As the employees were assembled in the one meeting place on 27 May 2022, most submitted their vote into the sealed box in view of all other employees, the CFMMEU official and the Applicant’s representatives.  The result of the ballot was ‘29 Yes votes’, ‘2 No votes’ and four employees were said to have abstained from voting.[1]

1. I am satisfied, having had regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others,[2] that the abovementioned deviation from the original voting method constituted a minor technical or procedural error for the purposes of s 188(2)(a) of the Act. Further, I am satisfied that the employees were not likely to have been disadvantaged by the error.

1. On the basis of the material contained in the application and accompanying declarations, 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.

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), and based on the declaration provided by the organisation, I note that the CFMMEU is covered by the Agreement.

1. The Agreement was approved on 16 June 2022 and, in accordance with s 54, will operate from 23 June 2022. The nominal expiry date of the Agreement is 16 June 2026.

DEPUTY PRESIDENT

[1] Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement – Ms Selina Bindahneem [Q 26]; Applicant’s Outline of Submissions.

[2] [2019] FWCFB 318.

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