Gilbarco Australia Pty Ltd T/A Gilbarco Australia Ltd

[2021] FWCA 7351

[2021] FWCA 7351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gilbarco Australia Pty Ltd T/A Gilbarco Australia Ltd
(AG2021/8381)

GILBARCO AUSTRALIA PTY LTD HEAD OFFICE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER P RYAN	SYDNEY, 31 DECEMBER 2021

Application for approval of the Gilbarco Australia Pty Ltd Head Office Enterprise Agreement 2021

[1] Gilbarco Australia (the Employer) has made an application for approval of an enterprise agreement known as the Gilbarco Australia Pty Ltd Head Office Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Pre-approval Statutory Timeframes

[3] There were only six clear days from the date on which employees were notified of the time, place and method of voting and the commencement of the vote. Section 180(3) of the Act requires at least 7 clear days. The Employer provided submissions that this constituted a minor procedural error and that the employees covered by the agreement were not likely to have been disadvantaged by this error.

[4] I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 that this constitutes a minor technical or 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 error.

[5] 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

[6] 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.

Sections 186, 187, 188 and 190

[7] 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

[8] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers Union (AWU), each being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

[9] In accordance with s.201(2), I note that the Agreement covers the AMWU and the AWU.

Approval

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 January 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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 1   [2019] FWCFB 318.