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.

Printed by authority of the Commonwealth Government Printer

In the matter of ITW Australia Pty Ltd t/a Paslode Australia, the applicant sought approval for the ITW Australia Pty Ltd (Residential Division) Healey Road Agreement 2021. The applicant, a company operating in the manufacturing and distribution of tools, aimed to establish the terms and conditions for the use of Healey Road, a public road, in relation to its residential division activities. The dispute centred on whether the proposed agreement would adequately safeguard the rights of the public and the applicant while ensuring efficient use of the road for business operations.

The court was tasked with determining if the proposed agreement met the requirements set forth in the relevant legislation, including the necessity to provide for the safety and convenience of the public, and whether it was reasonable and necessary for the purposes of the applicant's business. Additionally, the court had to assess whether the applicant had appropriately consulted with relevant stakeholders and if the agreement would impose an undue burden on the public or other road users.

The court found that the applicant had demonstrated a comprehensive understanding of the public interest and had taken significant steps to mitigate any potential negative impacts on the road's users. The court was satisfied that the proposed agreement provided adequate safety measures, ensured efficient use of the road, and was reasonable and necessary for the applicant's business operations. Furthermore, the court noted the applicant's efforts to consult with stakeholders, including local government and community members, which was deemed appropriate and sufficient.

Consequently, the court approved the ITW Australia Pty Ltd (Residential Division) Healey Road Agreement 2021. The final orders granted the applicant permission to use Healey Road under the terms and conditions specified in the agreement, subject to compliance with all relevant laws and regulations.

ITW Australia Pty Ltd t/a Paslode Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established