Ginns Electrical Pty Ltd

[2019] FWCA 4054

[2019] FWCA 4054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Ginns Electrical Pty Ltd
(AG2019/350)

GINNS ELECTRICAL PTY LTD SINGLE ENTERPRISE AGREEMENT 2018

Electrical contracting industry
DEPUTY PRESIDENT BULL	SYDNEY, 12 JUNE 2019

Application for approval of the Ginns Electrical Pty Ltd Single Enterprise Agreement 2018.

[1] An application (Form F16) has been filed by Ginns Electrical Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Ginns Electrical Pty Ltd Single 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 as per s.172(2) of the Act.

[2] The employer has provided written undertakings regarding the:

•  non-engagement of school-based apprentices and trainees;

•  payment of time off in lieu of termination;

•  rates of remuneration for employees subject to varied arrangements, and

•  pay rates for apprentices.

[3] A copy of the undertakings is attached at the end of the Agreement.

[4] 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.

[5] 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.

[6] The Notice of Representational Rights (NERR) issued to employees by the employer was in a format prior to 3 April 2017. The Full Bench in Huntsman [2019] FWCFB 318 considered this issue at paras [128] – [140] and conclude as follows:

“[128] The copy of the NERR lodged by the employer with its application for approval of the agreement was the NERR prescribed by Schedule 2.1 of the regulations immediately prior to 3 April 2017. The correct NERR for this agreement was the one prescribed by Schedule 2.1 of the regulations with effect from 3 April 2017.

[129] The employer contended that it actually provided the correct version of the NERR to its employees, but mistakenly lodged the prior version of the NERR with the Commission. However, the employer withdrew its application for other reasons. Because the application for approval of the agreement was withdrawn, we do not need to decide it, but in order to provide some guidance in respect of the issue raised we make the following observations in relation to the provision to employees of a pre 3 April 2017 version of the NERR.

[130] The provision of an earlier version of the NERR constitutes a technical error. By providing an earlier version of the NERR, an employer has failed to comply with the requirements of section 174(1A). This is an error as it represents a deviation from correctness. It is technical in nature, because it is the content of the notice that is deficient, as distinct from a failure to comply with a procedural requirement.

[131] Changes to the NERR took effect from 3 April 2017. These changes:

(a) reflected an amendment to the Act by changing a reference to subsection 174(6) to subsection 174(1A);

(b) replaced a reference to the Fair Work Ombudsman’s website as a source of assistance with a reference to the Fair Work Ombudsman generally; and

(c) replaced a reference to the Fair Work Commission’s Infoline as a source of assistance with a reference to the Fair Work Commission generally.

[132] The pre 3 April 2017 NERR is substantially the same as the post 3 April 2017 NERR. The core requirements of the NERR (as mandated by s 174(2) to (5) of the Act) are unchanged in both documents.

[133] Both NERRs specify that the employee may appoint a bargaining representative to represent the employee in bargaining and in FWC matters relating to bargaining. Both NERRs explain that a relevant employee organisation of which the employee is a member will represent their interests if the employee does not appoint another person (if there is no low-paid authorisation in operation). Both NERRs explain the effect of paragraph 176(1)(b) and subsection 176(2) (if a low-paid authorisation is in operation). Both NERRs explain the effect of paragraph 178(2)(a) of the Act.

[134] The purpose of the final paragraph of the NERR is to direct the employees to sources of assistance in the event that they have questions about the notice or enterprise bargaining.

[135] The pre 3 April 2017 NERR directed employees to:

(a) their employer;

(b) their bargaining representative;

(c) the Fair Work Ombudsman (via their website); and

(d) the Fair Work Commission (via their Infoline).

[136] The post 3 April 2017 NERR directed employees to:

(a) their employer;

(b) their bargaining representative;

(c) the Fair Work Ombudsman; and

(d) the Fair Work Commission.

[137] The purpose of the final paragraph of the NERR is not offended by an employer providing a pre 3 April 2017 NERR after this date. The employees are still directed to the same sources of advice.

[138] The pre 3 April 2017 NERR includes a reference to subsection 174(6), which originally permitted the regulations to prescribe the content and form of the NERR. The post 3 April 2017 NERR includes a reference to subsection 174(1A), which contained the relevant power from 1 January 2017.

[139] The outdated reference to s.174(6) of the Act in the NERR does not offend the purpose of the requirement to issue the NERR in the prescribed form. All relevant information is still communicated to the employees.

[140] We are satisfied that the mistaken provision of a pre 3 April 2017 NERR to employees would constitute a minor technical error in relation to the requirements of s.174 of the Act and the employees covered by such an agreement would not be likely to be disadvantaged by such an error.”

[7] I adopt the Full Bench reasoning above in holding that this is a minor technical error as per s.188(2) of the Act.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 June 2019. The nominal expiry date of the Agreement is 12 June 2023.

DEPUTY PRESIDENT

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