Kalmar Equipment (Australia) Pty Ltd

[2022] FWCA 4002

[2022] FWCA 4002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kalmar Equipment (Australia) Pty Ltd

(AG2022/4425)

Kalmar Equipment (Australia) Pty Ltd and Maritime Union of Australia (MUA division of the CFMMEU) Port Botany Facility Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 16 NOVEMBER 2022

Application for approval of the Kalmar Equipment (Australia) Pty Ltd and Maritime Union of Australia (MUA division of the CFMMEU) Port Botany Facility Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Kalmar Equipment (Australia) Pty Ltd and Maritime Union of Australia (MUA division of the CFMMEU) Port Botany Facility Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kalmar Equipment (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

1. 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.

1. The Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 46.6.1 – Personal Leave.

·   Clause 54.2.2 – Termination of Employment.

However, noting clause 4.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Form F17 does not indicate whether employees were provided with access to, or a copy of the incorporated Stevedoring Industry Award 2020 (the Award) in accordance with s.180(2) of the Act. This was raised with the parties, and the Applicant provided the following submissions in response:

“Kalmar accepts it did not provide a copy of the Award to employees by the start of or during the access period, despite its incorporation in the Agreement (the Error).

However, it submits that for the following reasons, the Agreement was “genuinely agreed” within the meaning of s.188 of the Act, having regard to s.188(2) of the Act, and is therefore capable of approval:

1.    s.188(2) of the Act provides that an enterprise agreement may be “genuinely agreed” if the FWC is satisfied that:

a.the agreement would have been genuinely agreed but for a minor procedural or technical error made in relation to s.180(2) of the Act; and

b.the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the relevant requirements.

2.    The Error was the result of an oversight by Kalmar.

3.    The Error constitutes a “minor procedural or technical error” made in relation to s.180(2)(a)(ii) of the Act.

4.    In light of the comments of the Full Bench in Re Huntsman Chemical Company Australia Pty Ltd (t/as RMAX Rigid Cellular Plastics) [2019] FWCFB 318 (Huntsman) at [117]) Kalmar submits that:

a.The Agreement is a ‘rollover’ agreement of previous enterprise agreements which have historically incorporated the Award.

b.Kalmar has been instructed by Mr Brad Dunn, Assistant Branch Secretary of the Sydney Branch of the MUA, that at all meetings with employees which occurred throughout bargaining (including meetings held in the meal room of Kalmar’s Port Botany Facility) the MUA had a copy of the Award which was made available to employees for their review and consideration.

c.Kalmar has also been instructed by Mr Dunn that he left a copy of the Award in the amenities room of Kalmar’s Port Botany Facility for the duration of bargaining, including throughout the access period.

d.Kalmar employees covered by the Agreement were generally engaged with the bargaining process and were each represented by the MUA throughout bargaining.

e.The Agreement and the explanatory material (Attachment 3 to the Form F17) both refer to the Award. As such, it’s incorporation ought to have been apparent to employees.

f.In light of (a)-(e) above:

i.the underlying purpose of the requirement at s.180(2), that is to ensure employees have a reasonable chance  to make an informed decision when voting (Huntsman at [55]), was realised despite the Error; and

ii.Employees were not disadvantaged by the Error.”

1. It is apparent that the incorporated Award was not provided to employees in accordance with s.180(2) of the Act. I provided the bargaining representatives for the Agreement an opportunity to provide any views in relation to my provisional view that the Agreement could be approved. There were no views expressed in response.

1. I have considered the above submissions and I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 November 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

[1] [2019] FWCFB 318.

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