NOV Australia Pty Ltd

[2019] FWCA 4762

[2019] FWCA 4762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NOV Australia Pty Ltd
(AG2019/1783)

NOV AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 9 JULY 2019

Application for approval of the NOV Australia Pty Ltd Enterprise Agreement 2019

[1] NOV Australia Pty Ltd has made an application for approval of an enterprise agreement known as the NOV Australia Pty Ltd 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 application is generally in order however one procedural irregularity requires attention. The employer provisionally advised employees of the vote ten clear days before it took place, however all of the voting details were not confirmed until four clear days before the vote. Section 180(3) requires that employees be notified of these details by the start of the access period for the agreement, the access period is the seven day period ending immediately before the start of the vote (s 180(4)). Employees should have been provided with the final details of the vote seven clear days before it commenced.

[3] However, I note that the employer’s statutory declaration stated that 25 of the 29 employees to be covered by the Agreement cast a valid vote, with all votes cast in favour of approving the Agreement. In all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that this constitutes a minor procedural error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[4] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[5] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] 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 each given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers the organisations.

[7] The Agreement was approved on 9 July 2019 and, in accordance with s 54, will operate from 16 July 2019. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

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