Integrated Packaging WA Pty Ltd

[2019] FWCA 3397

[2019] FWCA 3397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Integrated Packaging WA Pty Ltd
(AG2018/6879)

INTEGRATED PACKAGING KEWDALE ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 17 MAY 2019

Application for approval of the Integrated Packaging Kewdale Enterprise Agreement 2018.

[1] Integrated Packaging WA Pty Ltd has made an application for the approval of an enterprise agreement known as the Integrated Packaging Kewdale Enterprise Agreement 2018 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] There was an issue regarding compliance with s 173(3) of the Act. The last copy of the notice of employee representational rights (Notice) issued by the Employer was not issued until 77 days after the notification time. It is therefore the case that the Commission is unable to conclude, having considered s 188(1), that the Agreement has been genuinely agreed to. Consideration therefore turns to s 188(2).

[3] A failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s 188(2)(a). 1 A procedural requirement is one which requires an employer to follow a particular process or course of action. For example, providing employees with a Notice as soon as practicable, and not later than 14 days after the notification time.2

[4] The underlying purpose of s 173(3) is ensure that the relevant employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner. 3 Where employees received the Notice later than the 14 day period, it may be the case that this prevented them from attending initial bargaining meetings, and therefore may keep them from effectively influencing the bargaining process even after they participate.4 However, there was no evidence before me to suggest that this was the case. I am satisfied that, notwithstanding the delay in providing the last Notice, the employer had taken steps to ensure that all the employees were aware of their representational rights, and bargaining did not occur until such time as representatives were appointed, one of which was an Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) Organiser.

[5] The Full Bench in Huntsman outlined that what constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. 5

[6] I am satisfied in the circumstances of this case that the failure to provide the last Notice in the requisite period was a minor procedural requirement in light of that which has been observed. The relevant employees were unlikely to be disadvantaged by such error, and I do not consider it to be one that stands in the way of the approval of the Agreement.

[7] The Applicant provided the Commission with a further Form F17 - Employer's statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement), which included more comprehensive information, such that I could be satisfied that the requirements in ss 180(5) and 186(2) of the Act had been satisfied. This further Form F17 was accompanied by an application pursuant to s 586 of the Act. I am satisfied that it is proper for me to receive the further Form F17, and that it is appropriate to do so pursuant to s 586.

[8] The Applicant made a further application pursuant to s 586 of the Act for the Commission to amend the Agreement to ensure compliance with the signature requirements. 6 In support of this application, the Applicant provided an amended signature page for the Agreement. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s 586. The amended signature page is included in the published Agreement.

[9] The Employer has provided written undertakings. A copy of the undertakings are attached as Annexure A. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. No objections were raised regarding the undertakings.

[10] 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.

[11] The model consultation term prescribed by the Fair Work Regulations 2009 is attached to the Agreement and taken to be a term of it.

[12] The model flexibility term prescribed by the Fair Work Regulations 2009 is attached to the Agreement and taken to be a term of it.

[13] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[14] The AMWU,being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the statutory declaration provided by the AMWU, I note that the Agreement covers it.

[15] The Agreement was approved on 17 May 2019 and, in accordance with s 54, will operate from 24 May 2019. The nominal expiry date of the Agreement is 31 October 2021.

DEPUTY PRESIDENT

Annexure A

 1   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (‘Huntsman’).

 2   Fair Work Act 2009 (Cth) s 173(3); Huntsman[2019] FWCFB 318, [117].

 3   Huntsman [2019] FWCFB 318, [74].

 4   Ibid.

 5 Ibid [117].

 6   Fair Work Regulations 2009 (Cth) r 2.06A

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