Kalmar Equipment (Australia) Pty Ltd

[2019] FWCA 1553

[2019] FWCA 1553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kalmar Equipment (Australia) Pty Ltd
(AG2019/228)

KALMAR EQUIPMENT (AUSTRALIA) PTY LTD AND MARITIME UNION OF AUSTRALIA (MUA DIVISION OF THE CFMMEU) PORT BOTANY FACILITY ENTERPRISE AGREEMENT 2018

Stevedoring industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 8 MARCH 2019

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 2018.

[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 2018 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Kalmar Equipment (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] The application was not lodged within 14 days after the Agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made. 1

[5] The Form 16 was filed absent a signature; an oversight by the Applicant. I do not consider this fatal to the application for approval. Section 586 empowers the Commission to deal with errors and irregularities in applications and associated documents. In the circumstances of this case, I considered it appropriate to allow a revised Form 16 to be submitted inclusive of the requisite signature. 2

[6] The copy of the notice of employee representational rights (NERR) lodged by the Applicant with its application for the approval of the Agreement was the NERR prescribed by Schedule 2.1 of the regulations immediately before 3 April 2017 (old NERR). The correct NERR for this Agreement was the one prescribed by Schedule 2.1 of the regulations that took effect from 3 April 2017. The Applicant mistakenly used the old NERR but had made no other changes to it, other than the text required by it including the employer’s name and the name of the enterprise agreement.

[7] In Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman) the Full Bench considered that the old NERR was substantially the same as the post 3 April 2017 NERR. 3 Whilst the provision of the old NERR constituted a minor technical error in relation to s 174, the Full Bench was satisfied that the employees covered by the Agreement would not likely be disadvantaged by the error. As was the case in Huntsman,I am satisfied that the mistaken provision of the old NERR to employees constituted a minor technical error. The 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.

[8] 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.

[9] The Maritime Union of Australia Division of 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), and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[10] The Agreement was approved on 8 March 2019 and, in accordance with s 54, will operate from 15 March 2019. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE502216  PR705691>

Annexure A

 1   Qube Logistics (Vic) Pty Ltd [2015] FWCA 3074.

 2   See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Australian Manufacturing Workers’ Union v Sustaining Works Pty Limited[2015] FWCFB 4422.

 3   [2019] FWCFB 318