MSP Group Pty Ltd T/A Pickard Timber & Pickard Trusses

[2022] FWCA 2301

The attached document replaces the document previously issued with the above code on 11 July 2022.

The final paragraph of the decision was incorrectly numbered as [1] and has been amended to [8].

Joseph Creese
Associate to Deputy President Beaumont

Dated 12 July 2022

[2022] FWCA 2301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MSP Group Pty Ltd T/A Pickard Timber & Pickard Trusses

(AG2022/2065)

Pickard Timber & Pickard Trusses Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 11 JULY 2022

Application for approval of the Pickard Timber & Pickard Trusses Enterprise Agreement 2022

MSP Group Pty Ltd T/A Pickard Timber & Pickard Trusses has made an application for the approval of an enterprise agreement known as the Pickard Timber & Pickard Trusses Enterprise 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 from the materials filed in support of the application, that the Applicant had not provided the Notice of employee representational rights (NERR) to all employees within 14 days of the notification time for the agreement as required by s 173(3) of the Act. Having brought this to the attention of the Applicant, the Applicant submitted that all of its employees working within classifications covered by the Timber Industry Award 2020 had been provided with an NERR by 15 December 2021. However, the Applicant identified that the first NERR did not list the Road Transport Distribution Award 2020 as an instrument which also covered the employee group. Consequently the Applicant decided to issue a second NERR on the 29 April 2022, which referred to coverage of employees working in classifications covered by both the Timber Industry Award 2020 and the Road Transport and Distribution Award.

I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] that the abovementioned error constituted a minor technical or procedural error for the purposes of s 188(2)(a) of the Act. Further, I am satisfied that the employees were not likely to have been disadvantaged by the error.

The Applicant has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertaking proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertaking 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.

The Construction, Forestry, Maritime, Mining and Energy Union (the organisation), 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 11 July 2022, and, in accordance with s 54, will operate from 18 July 2022. The nominal expiry date of the Agreement is 1 January 2025.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by MSP Group Pty Ltd, trading as Pickard Timber and Pickard Trusses, to approve the Pickard Timber and Pickard Trusses Enterprise Agreement 2022. The applicant sought to have the agreement, which was negotiated between the employer and the union representing the employees, officially recognised and enforced. The union, acting on behalf of the employees, did not oppose the application.

The primary legal issues addressed by the Commission were whether the agreement met the necessary criteria for approval under the Fair Work Act 2009, specifically whether it was a bona fide enterprise agreement, free from any illegality or procedural defects. The Commission examined the process through which the agreement was negotiated, the extent of union and employer involvement, and whether the agreement contained terms that were fair and reasonable.

The Commission found that the agreement was a bona fide enterprise agreement that had been fairly and properly negotiated. It noted that the union had provided evidence of a comprehensive negotiation process, and that the agreement contained terms that were not unreasonable. The Commission also determined that there were no procedural defects in the negotiation process, and that the agreement did not contain any illegal terms. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Pickard Timber and Pickard Trusses Enterprise Agreement 2022, finding it to be a bona fide enterprise agreement that met the requirements of the Fair Work Act 2009. The agreement is now officially recognised and enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established