G.M. Kane & Sons Pty Ltd T/A Gmk Logistics
[2022] FWCA 4406
•14 DECEMBER 2022
| [2022] FWCA 4406 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
G.M. Kane & Sons Pty Ltd T/A Gmk Logistics
(AG2022/4935)
GMK LOGISTICS AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2022
| Storage services | |
| COMMISSIONER P RYAN | SYDNEY, 14 DECEMBER 2022 |
Application for approval of the GMK Logistics and United Workers Union Enterprise Agreement 2022
G.M. Kane & Sons Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the GMK Logistics and United Workers Union Enterprise Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.
Notice of Employee Representational Rights (NERR)
The notification time for the Agreement was 5 July 2022. The NERR was issued on 26 September 2022, which is beyond the 14-day requirement in s.173(3) of the FW Act.
The Employer submitted the United Workers’ Union (UWU) was present at all bargaining meetings before and after the issuing of the NERR. Furthermore, the UWU had meetings with employees following each bargaining meeting. The Employer submitted that in these circumstances the failure to issue the NERR within 14 days of the notification time constituted a minor procedural error and that the employees were not disadvantaged by the error.
I note the request to approve the Agreement was not made until 2 November 2022, which was at least 21 days after the NERR was issued.[1]
I am satisfied having regard to the materials before me, the Employer’s submissions, and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[2] that the failure to issue the NERR constituted a minor procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.
Section 190 Undertakings
The Employer 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The UWU being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.
In accordance with s.201(2), I note that the Agreement covers the UWU.
Approval
The Agreement is approved. Clause 3.1 of the Agreement states that the Agreement shall operate on and from the first pay period to commence on or after the seventh day after approval by the Commission. The Applicant advised that it operates a weekly pay period which commences on a Monday.
Having regard to the information provided by the Applicant, s.36 of the Acts Interpretation Act 1901, and s.54 of the FW Act, the Agreement will operate from Sunday 25 December 2022. The nominal expiry date of the Agreement is 30 June 2025.
COMMISSIONER
[1] See s.181(2) of the FW Act.
[2] [2019] FWCFB 318.
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