Relationships Australia Canberra & Region Inc

[2019] FWCA 6268

[2019] FWCA 6268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Relationships Australia Canberra & Region Inc
(AG2019/2244)

RELATIONSHIPS AUSTRALIA CANBERRA & REGION INCORPORATED ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 9 SEPTEMBER 2019

Application for approval of the Relationships Australia Canberra & Region Incorporated Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Relationships Australia Canberra & Region Incorporated 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] The statutory declaration filed with the application raised a procedural issue. Emails attached to the application, dated 11 April 2018 and 18 April 2018, requested that employees provide any nominations for bargaining representatives by Monday 23 April 2018. The email dated 18 April 2018 specified that no nominations would be accepted after that date. The additional information provided by the Applicant meant that the Notice of Employee Representational Rights (NERR) was not in the prescribed form as required by s 174 of the Act. The issue was raised with the Applicant. In response, the Applicant submitted the this was an administrative error and that appointments were in fact accepted after this time. Further, evidence was provided by the Applicant which established that the Applicant continued to accept appointments after Monday, 23 April 2018. In total, more than 20 employee bargaining representatives were appointed.

[3] 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[1] this constitutes a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration, and the submissions and evidence described above, 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 subsection 188(2) of the Act.

[4] 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.

[5] 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.

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

[7] 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.

[8] Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 16 September 2019. The nominal expiry date of the Agreement is 15 September 2022.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

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