Mackay Consolidated Industries Pty Ltd

[2019] FWCA 4558

[2019] FWCA 4558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mackay Consolidated Industries Pty Ltd
(AG2019/1720)

MACKAY CONSOLIDATED INDUSTRIES PTY LTD UNION ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 1 JULY 2019

Application for approval of the Mackay Consolidated Industries Pty Ltd Union Enterprise Agreement 2019.

[1] Mackay Consolidated Industries Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as Mackay Consolidated Industries Pty Ltd Union Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The copy of the Notice Of Employee Representational Rights (NERR) lodged by the Employer with the application for approval was the NERR prescribed by Schedule 2.1 of the Fair Work Regulations 2009 (Regulations) immediately prior to 3 April 2017.  The correct NERR prescribed by Schedule 2.1 of the Regulations for the Agreement was the one prescribed by Schedule 2.1 of the Regulations with effect from 3 April 2017.  The Employer accepts that it provided an earlier version of the NERR to employees and that in doing so it has failed to comply with the requirements of s 174(1A) of the Act. 

[3] In the present circumstances and with regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 at [128]-[140], I am satisfied that the mistaken provision of a pre- 3 April 2017 NERR to employees is a minor technical error in relation to the requirement of s 174 of the Act and the employees covered by the Agreement were not likely to have been disadvantaged by such an error.  Accordingly, pursuant to s 188(2) of Act I am satisfied that, notwithstanding the earlier version of the NERR being provided to employees, the Agreement has been genuinely agreed to.

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement.

[5] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the further information and material provided by the Employer, and in reliance upon s 188(2) of the Act, 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.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they seek to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declarations provided by the organisations, I note that the Agreement covers the organisations.

[8] The Agreement was approved on 1 July 2019 and, in accordance with s 54, will operate from 8 July 2019. The nominal expiry date of the Agreement is 30 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A