Metroll Manufacturing WA Pty Ltd T/A Metroll Perth Pty Ltd
[2023] FWCA 128
•17 JANUARY 2023
| [2023] FWCA 128 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Metroll Manufacturing WA Pty Ltd T/A Metroll Perth Pty Ltd
(AG2022/5455)
METROLL PERTH ENTERPRISE BARGAINING AGREEMENT 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 17 JANUARY 2023 |
Application for approval of the Metroll Perth Enterprise Bargaining Agreement 2022
Metroll Manufacturing WA Pty Ltd T/A Metroll Perth Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Metroll Perth Enterprise Bargaining Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
It was evident that the notice of employee representational rights (the notice) provided to employees on 27 September 2022 did not include the title of the proposed agreement and therefore did not appear to have contained the content or been in the form, required by s 174(1A) of the Act. The issue was raised with the Applicant who responded that the omission was a minor technical error which had not caused disadvantage to the relevant employees.
Non-compliance with s 174 of the Act can, in some circumstances, prevent employees from having genuinely agreed to an enterprise agreement, and s 186(2)(a) of the Act prevents the Commission from approving an enterprise agreement if the agreement has not been genuinely agreed to by the relevant employees.
In short, I am not satisfied that the Agreement has been genuinely agreed to by the Applicant’s employees as a result of the Applicant’s non-compliance with s 174(1A) of the Act. In this respect, the Applicant relies on s 188(2) of the Act in relation to that non-compliance.
Section 188(2) of the Act provides that an agreement can be genuinely agreed to by the Applicant’s employees notwithstanding that the notice was affected by a minor technical error, provided the relevant employees were not likely to have been disadvantaged by those errors.
The error made is not, in my view, an error that strikes at the ‘core requirements’ of a notice of employee representational rights, being the paragraphs in the notice of employee representational rights that advise employees of their right to appoint a representative, how that representative may be appointed, and that members of a union will have that union be their default bargaining representative unless another person is appointed (see Huntsman Chemical Company Australia Pty Ltd (Huntsman) at [83]).[1]
The Applicant’s employees were represented in bargaining for the Agreement, as confirmed by the provision of a Form F18 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (AMWU). The representation and the endorsement of the AMWU has been considered as both confirmation that the notice achieved its ‘core requirements’ and also the minor technical errors in the notice did not disadvantage the Applicant’s employees. Furthermore, it is apparent that the employees were aware of the scope of the Agreement, given the Agreement is essentially a ‘rollover’ agreement, its predecessor having been approved on 7 June 2019.[2] It follows that I am satisfied, having regard to the Full Bench decision in Huntsman,[3] the abovementioned error constituted a minor technical or procedural error for the purposes of s 188(2)(a) of the Act and that the employees were not likely to have been disadvantaged by the error.
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.
In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. It was provided with the opportunity to raise and address any objections it had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
As noted, the AWMU 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 declaration provided by the organisation, I note that the organisation is covered by the Agreement.
The Agreement was approved on 17 January 2023 and, in accordance with s 54, will operate from 24 January 2023. The nominal expiry date of the Agreement is 15 December 2025.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318 (Huntsman).
[2] [2019] FWCA 3765.
[3] Huntsman (n 1).
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