KB Seafood Company Pty Ltd
[2022] FWCA 631
•25 FEBRUARY 2022
| [2022] FWCA 631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
KB Seafood Company Pty Ltd
(AG2022/19)
KB Seafood Company Pty Ltd Enterprise Agreement 2021
| Seafood processing | |
| DEPUTY PRESIDENT MANSINI | MELBOURNE, 25 FEBRUARY 2022 |
Application for approval of the KB Seafood Company Pty Ltd Enterprise Agreement 2021.
KB Seafood Company Pty Ltd has applied for approval of a single enterprise agreement known as the KB Seafood Company Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).
Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these matters.
The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it was not in the prescribed form (the coverage did not precisely align with the coverage in the Agreement). Further information was provided to support a finding that the relevant employees could understand the scope of the proposed enterprise agreement. 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.
Some of the relevant employees were notified of the time and place of the vote during the access period, contrary to the requirement at s.180(3). Of 110 employees covered by the Agreement, 92 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[2], 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.
Accordingly, notwithstanding the errors identified at paragraphs [3] and [4], I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.
Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.
Noting clause 1.5.3 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.
As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.
On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.
The Agreement was approved on 25 February 2022 and, notwithstanding clause 1.4.1 and in accordance with s.54, will operate from 4 March 2022. The nominal expiry date of the Agreement is 25 February 2026.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318.
[2] [2019] FWCFB 318.
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