Multidiscipline Solutions Pty Ltd

[2020] FWCA 899

[2020] FWCA 899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Multidiscipline Solutions Pty Ltd
(AG2020/12)

MULTIDISCIPLINE SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 19 FEBRUARY 2020

Application for approval of the Multidiscipline Solutions Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Multidiscipline Solutions Pty Ltd Enterprise Agreement 2019 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] On 6 January 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) emailed the Fair Work Commission (Commission) requesting a copy of the Agreement, form F16, form F17 and any other materials filed with the application and to be heard in relation to the application. On 8 January 2020, the Commission provided the materials requested to the CEPU. On 4 February 2020, my Associate wrote to the Applicant asking whether the CEPU was a bargaining representative in relation to the Agreement and if not, whether the Applicant objected to the CEPU being heard in relation to the application.  The Applicant subsequently objected to the CEPU being heard on the basis that the CEPU was not a bargaining representative for the Agreement, were not involved in and had no knowledge of the circumstances surrounding the making of the Agreement, and that neither the CEPU or any members of the organisation would be affected by a decision to approve the Agreement.

[3] On 11 February 2020, my Associate emailed the CEPU informing them that the Applicant had objected to the union being heard and directed the union to file and serve submissions setting out the issues which it wished to be heard on and why it should be heard on those issues by 4pm, 13 February 2020. The email also stated that “If no submissions are filed and served by the CEPU by 13 February 2020, the application will be determined without further notice to the CEPU”. No such submissions were filed by 4pm on 13 February 2020, nor have any submissions been filed by the CEPU since that time. I have therefore proceeded to determine the Application on the basis of the material before the Commission and without further notice to the CEPU.

[4] The statutory declaration (form F17) filed with the application provided that employees were notified of the time, place and method of voting on 13 December 2019. The vote to approve the Agreement occurred on 20 December 2019. This does not comply with the requirement in section 180(3) of the Act that the employer must take all reasonable steps to notify the relevant employees of the time, place and method of voting by the start of the access period (being the 7 clear days ending immediately before the day of the vote). Further, the notice of employee representational rights (NERR) filed with the application was based upon the form prescribed prior to 3 April 2017, and therefore was not in the currently prescribed form as required by s 174 of the Act.

[5] Nevertheless, in the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 the issues detailed above constitute minor procedural or technical errors for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration (form F17) I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[6] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[7] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[8] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[9] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 26 February 2020. The nominal expiry date of the Agreement is 18 February 2024.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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