RD Miller Pty Ltd

[2021] FWCA 5649

[2021] FWCA 5649

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

RD Miller Pty Ltd

(AG2021/6797)

RD Miller Pty Ltd Enterprise Agreement 2021-2024

Building, metal and civil construction industries
Deputy President Mansini	MELBOURNE, 23 SEPTEMBER 2021

Application for approval of the RD Miller Pty Ltd Enterprise Agreement 2021-2024.

1. RD Miller Pty Ltd has applied for approval of a single enterprise agreement known as the RD Miller Pty Ltd Enterprise Agreement 2021-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

1. Since the application was made, the Commission inquired about the steps taken to comply with the pre-approval requirements and raised concerns about whether the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided.

1. The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it included content other than the prescribed form (employer letter head and logo). The Notice was otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others,[1] I am satisfied that:

a)this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b)the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

1. The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a number of casual employees. The Applicant provided further evidence to satisfy the Commission that:

a)   all employees, who were employed at the relevant time(s)[2] and covered by the Agreement, were requested to vote; and

b)   of the employees who were requested to vote, a small number of the casual employees did not work a shift in the relevant period, however even if those employees had cast a vote (which is not known) it would have been immaterial to the outcome.

1. I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission.[3]

1. Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

1. Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representatives did not oppose the Undertakings. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

1. On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

1. The Agreement was approved on 23 September 2021 and, in accordance with s.54, will operate from 30 September 2021. The nominal expiry date of the Agreement is 23 September 2025.

1. For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details.[4]

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

[2] Appeal by SDA and others [2019] FWCFB 7891.

[3] National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

[4] The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

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