Freshmore (NSW) Pty Ltd - [2022] FWC 768

[2022] FWC 768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Freshmore (NSW) Pty Ltd

(AG2022/298)

COMMISSIONER P RYAN

SYDNEY, 6 APRIL 2022

Application for approval of a single-enterprise agreement – failure to issue notice of employee representational rights prior to ballot – whether a minor or technical procedural error – Commission not satisfied enterprise agreement has been genuinely agreed to – application dismissed.

Background

Freshmore (NSW) Pty Ltd (Applicant) filed an application for approval of a single-enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act) (Application)

On 25 February 2022, my chambers sent correspondence to the Applicant seeking responses and/or undertakings in relation to various issues of concern that were identified with Application. Amongst the issues of concern, the Applicant was requested to provide any additional information as to how the Notice of Employee Representational Rights (NERR) was provided to employees along with any supporting documentary materials.

Following the granting of an extension of time, the Applicant filed its response on 3 March 2022. In relation to the NERR the Applicant stated:

…a vote was held 02/02/2022 the vote was held by secret ballot and the EBA was passed. Advanced Precast then lodged the NERR form on the 09/02/2022 within the 14-day period as prescribed in the fair work ACT 2009.

I then listed the matter for conference on 8 March 2022. During the course of the conference, the Applicant confirmed the NERR was not provided to the relevant employees until after the vote to approve the proposed enterprise agreement.

On 9 March 2022, my chambers sent further correspondence to the Applicant, providing a summary of the outstanding issues. In relation to the issue of the NERR, that correspondence stated:

Issue 3 – during the course of the conference, the applicant employer confirmed that the notice of employee representational rights (NERR) was not issued to employees until after the vote to approve the agreement. Commissioner Ryan requires any further response or submission as to whether this constitutes a minor technical or procedural error capable of being remedied. In this respect, your attention is drawn to the Full Bench Decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others.

On 14 March 2022, the Applicant filed submissions and undertakings in response. In relation to the NERR, the Applicant submitted that the failure to provide the NERR within 14 days of the notification time was a misunderstanding as to when it was required to be provided to employees and constituted a minor procedural error. The Applicant further submitted that the relevant employees were not disadvantaged by the error.

On 25 March 2022, the following correspondence was sent to the Applicant:

Dear parties,

I refer to the above matter. Commissioner Ryan provides the following correspondence to the parties:

The Applicant has confirmed in conference before the Commission (8 March) and in subsequent written submissions (14 March) that it did not give the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 768
Decision Date

CaseChat Overview and Summary

In this matter, Freshmore (NSW) Pty Ltd applied for the approval of a single-enterprise agreement under the Fair Work Act 2009. The Commission was required to determine whether the enterprise agreement had been genuinely agreed to by the employees, given that the Notice of Employee Representational Rights (NERR) was not issued until after the vote to approve the agreement had taken place. The primary legal issue before the Commission was whether the failure to issue the NERR constituted a minor or technical procedural error, and if the enterprise agreement had genuinely been agreed to by the employees. The Commission found that the failure to issue the NERR prior to the vote constituted a non-compliance with s.181(2) of the Fair Work Act, which requires that employees not be requested to approve an enterprise agreement until at least 21 days after the last NERR is given. The Commission held that the failure to issue the NERR meant that the relevant employees were never provided with the prescribed text regarding their representational rights, which was described as the 'core requirements' of the NERR. The Commission further found that the failure to issue the NERR prior to the vote taking place could not constitute a minor procedural or technical error. As a result, the Commission was not satisfied that the enterprise agreement had been genuinely agreed to by the employees. The application for approval of the enterprise agreement was dismissed.
The Fair Work Commission dismissed the application for approval of the enterprise agreement, stating that the failure to issue the Notice of Employee Representational Rights (NERR) prior to the vote constituted a non-compliance with s.181(2) of the Fair Work Act. The Commission found that the failure to issue the NERR meant that the relevant employees were never provided with the prescribed text regarding their representational rights, which was described as the 'core requirements' of the NERR. The Commission held that the failure to issue the NERR prior to the vote taking place could not constitute a minor procedural or technical error. As a result, the Commission was not satisfied that the enterprise agreement had been genuinely agreed to by the employees.

Orders