P. Pullar & Co (Coolstores) Pty Ltd
[2022] FWCA 1454
•24 MAY 2022
| [2022] FWCA 1454 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
P. Pullar & Co (Coolstores) Pty Ltd
(AG2022/508)
P. Pullar & Co (Coolstores) Pty Ltd and the United Workers Union Collective Agreement 2021
| Storage services | |
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 24 MAY 2022 |
Application for approval of the P. Pullar & Co (Coolstores) Pty Ltd and the United Workers Union Collective Agreement 2021
An application has been made by P. Pullar & Co (Coolstores) Pty Ltd (the Employer) pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the P. Pullar & Co (Coolstores) Pty Ltd and the United Workers Union Collective Agreement 2021 (the Agreement).
The application was not lodged within 14 days after the agreement was made. The Employer and the United Workers’ Union (UWU) filed joint submissions seeking an extension of the time for filing the application for approval under s 185(3)(b) of the Act. Having regard to all the circumstances, including the matters set out in the statutory declaration made by Mr Peter Williams, I consider it fair to extend the time for making the application under s.185(3)(b) to 25 February 2022.
Question 20 on the Amended Form F17 indicates that on 16 December 2022 the Employer advised employees that a secret ballot for approval of the Agreement would be conducted in person on site in the lunchroom after the Christmas period. The Employer then notified the relevant employees of the voting details, including the time and date of the vote, on 5 January 2022. Question 25 on the Amended Form F17 indicates that the date that voting for the Agreement commenced was 10 January 2022. Therefore, the 7-day access period started on the first full day after 2 January 2022. As such, the employer did not notify the relevant employees of the voting details by the start of the access period in accordance with s.180(3) of the Act.
The Employer and UWU acknowledge that the vote process followed did not meet the requirements of s.180(3) of the Act, however, submit that this concern can be remedied by s.188(2) of the Act. The Employer and UWU note that only a small number of the employees are covered by the Agreement, that all such employees cast a valid vote to approve the Agreement and submit that, as such, employees were not disadvantaged and the non-compliance by the Employer represents a minor procedural or technical error as contemplated by s.188(2) of the Act.
In the circumstances and having regard to the submissions of the Employer and UWU and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], I am satisfied that the error constitutes a minor procedural error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.
The Employer 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. The undertaking is taken to be a term of the Agreement.
Subject to the matters referred to above, 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.
UWU, 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) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 May 2022. The nominal expiry date of the Agreement is 1 July 2024.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318
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