DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PHE Pty Ltd
(AG2019/2158)

PHE PTY LTD - VISY TUMUT ELECTRICAL AND INSTRUMENTATION SINGLE ENTERPRISE AGREEMENT 2019

Electrical contracting industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 29 JULY 2019

Application for approval of the PHE Pty Ltd - Visy Tumut Electrical and Instrumentation Single Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the PHE Pty Ltd - Visy Tumut Electrical and Instrumentation Single Enterprise Agreement 2019 (Agreement). That application was made by PHE Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The agreement is a single-enterprise agreement.

[2] The application is attended by one irregularity. That is, employees were issued with a Notice of Employee Representational Rights (NERR) that was set out on PHE Pty Ltd letterhead instead of in the form set out in Schedule 2.1 of the Fair Work Regulations 2009 (Cth) (Regulations) as required by s.174(1A)(c) of the Act. However, the content in the NERR issued to employees was exactly in line with that set out in Schedule 2.1 of the Regulations, save for the URL of the website of the Fair Work Commission (Commission) which was listed as rather than

[3] In considering this application for approval of the Agreement I have paid close regard to the Full Bench decision of Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others (Huntsman Decision). 1 That decision provides clarity around the operation of s.188(2) of the Act. This section of the Act was introduced by the Fair Work Amendment (Repeal of the 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act), which received the Royal Assent on 11 December 2018, and provides a mechanism for the Commission to conclude that an enterprise agreement has been ‘genuinely agreed’ within the meaning of s.186(2)(a) despite ‘minor procedural or technical errors’.

[4] The Huntsman Decision noted that the Revised Explanatory Memorandum for the Amending Act sets out “the inclusion of the employer’s company logo or letterhead on a [NERR]” as an example of a ‘minor procedural or technical error’ of the kind remediable by the new s.188(2). 2

I note that, pursuant to the Huntsman Decision, any “determination of whether an error constitutes a ‘minor error’ within the meaning of s.188(2) calls for an evaluative judgment having regards to the underlying purpose of the relevant procedural or technical requirement which was not complied with and the relevant circumstances”. 3

[5] I am satisfied that in this instance, having regard to all the circumstances, the technical error of issuing of the NERR on PHE Pty Ltd letterhead constitutes a minor error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. Consequently, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] 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.

[7] The Agreement was approved on 29 July 2019 and, in accordance with s.54 of the Act, will operate from 5 August 2019. The nominal expiry date of the Agreement is 29 July 2022.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

2 Ibid at [76].

3 Ibid at [74].

Printed by authority of the Commonwealth Government Printer

PHE Pty Ltd

[2019] FWCA 4954

29 JULY 2019

DECISION