Hunter Douglas Pty Limited T/A Hunter Douglas
[2024] FWCA 2821
•31 JULY 2024
| [2024] FWCA 2821 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Hunter Douglas Pty Limited T/A Hunter Douglas
(AG2024/2461)
HUNTER DOUGLAS LIMITED CENTRAL OPERATIONS ENTERPRISE AGREEMENT FOR THE PERIOD 2024 TO 2026
| Textile industry | |
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 31 JULY 2024 |
Application for approval of the Hunter Douglas Limited Central Operations Enterprise Agreement for the period 2024 to 2026
An application has been made for approval of an enterprise agreement known as the Hunter Douglas Limited Central Operations Enterprise Agreement for the period 2024 to 2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hunter Douglas Pty Limited (the Applicant). The Agreement is a single enterprise agreement.
Following the filing of the application, a number of concerns were brought to the attention of the Applicant. The Applicant provided a written response to those concerns and made further brief oral submissions at a hearing on 30 July 2024. One of the concerns related to a discrepancy as between the title of the Agreement as set out in the Notice of Employee Representational Rights (NERR) and the title set out in the Agreement that was ultimately filed. The Applicant submitted that this was a minor technical error that could be disregarded in accordance with s.188(5). That submission was supported by the Australian Workers’ Union (AWU), which was a bargaining representative in the negotiations. I am satisfied that the error is a minor technical error and that employees were not likely to have been disadvantaged by the error. I propose to disregard the error under s.188(5).
It was also apparent from the material filed in support of the application that the notices issued to employees under s.173 were not given to all employees within 14 days of the notification time as required by s.173(3). In this instance the notification time was 1 May 2024 and notices were issued up to and including on 24 May 2024. The Applicant submitted that there were multiple attempts to provide the NERR within the 14 day period but because some employees were on leave and inaccessible, this was not able to be achieved. All employees did ultimately receive a NERR. The Applicant said that s.188(5) applied in the circumstances. That submission was supported by the AWU, who indicated that employees of the Applicant were aware of the negotiations and their right to be represented. The AWU submitted that it had extensive membership amongst the employees of the Applicant to be covered by the Agreement and that no concerns had been raised by employees that they had been disadvantaged by the delay in providing the NERR. I also take into account clause 1 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Statement) which relevantly provides that employers should ensure that employees who will be covered by a proposed agreement are informed of their rights to be represented in bargaining “at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement.”
The material in support of the application also disclosed that there had not been the required 21-day period between the date the last NERR was given, in this case 24 May 2024, and the date the request was made by the Applicant for the employees to vote to approve the agreement, which was 11 June 2024.[1] The Applicant said that the negotiations with employees and the AWU had been conducted in good faith and that all employees had an opportunity to contribute to the process. The Applicant and the AWU said employees understood the process and wanted the Agreement to be approved as soon as possible to take account of a potential redundancy situation within the workforce. They said employees were experienced in the bargaining process because of a predecessor agreement.
I am of the view that the Agreement was genuinely agreed to by the employees of the Applicant covered by the Agreement. I have taken into account clause 19 of the Statement. I have given significant weight to the fact that the AWU, being an organisation that was a bargaining representative for a significant number of those employees supports the approval of the Agreement and does not have concerns that the Agreement was not genuinely agreed to. I am satisfied that the errors referred to in the preceding two paragraphs are, in the circumstances, minor procedural errors and that employees were not likely to have been disadvantaged by the errors. I propose to disregard the errors in accordance with s.188(5) of the Act.
The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.
I note that Clause 5.3 of the Agreement provides that where there is an inconsistency between this agreement and the National Employment Standards (NES), and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. I note that Clauses 6.8(c) and 14.1(e) raise such potential inconsistencies in which case clause 5.3 would apply.
The AWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.
DEPUTY PRESIDENT
Annexure A
[1] See section 181(2).
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