ITW Australia Pty Ltd t/a Paslode Australia

[2021] FWCA 3581

[2021] FWCA 3581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ITW Australia Pty Ltd t/a Paslode Australia
(AG2021/5383)

ITW AUSTRALIA PTY LTD (RESIDENTIAL DIVISION) HEALEY ROAD AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 22 JUNE 2021

Application for approval of the ITW Australia Pty Ltd (Residential Division) Healey Road Agreement 2021.

[1] ITW Australia Pty Ltd has applied for approval of a single enterprise agreement known as the ITW Australia Pty Ltd (Residential Division) Healey Road Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[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).

[3] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement contravenes s.55 of the Act. Further information and evidence was provided in relation to these concerns.

[4] ITW Australia Pty Ltd sought to correct a typographical error in the original application, by filing an amended statutory declaration. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[5] The steps taken to notify the relevant employees of the time, place and method of the vote were not strictly compliant with the requirements of s.180(3) of the Act because they were taken on the first day after the start of the access period (and not by the start of the access period). Notwithstanding this non-compliance, all 12 of the relevant employees cast a vote. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[6] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[7] Noting clause 1.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[8] On the basis of the material contained in the application and related materials, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Agreement was approved on 22 June 2021 and, in accordance with s.54, will operate from 29 June 2021. The nominal expiry date of the Agreement is 7 May 2024.

[10] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

 1   [2019] FWCFB 318.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

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