Rocklea Pressed Metal Pty Ltd T/A Rockpress

[2021] FWCA 6444

[2021] FWCA 6444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Rocklea Pressed Metal Pty Ltd T/A Rockpress
(AG2021/7809)

ROCKLEA PRESSED METAL PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 28 OCTOBER 2021

Application for approval of the Rocklea Pressed Metal Pty Ltd Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Rocklea Pressed Metal Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Rocklea Pressed Metal Pty Ltd T/A Rockpress. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings 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.

[4] I note that the relevant employees were provided with access to the written text of the Agreement on 23 September 2021. Furthermore, the employer also notified the relevant employees of the time, place and method of the vote on 23 September 2021. The vote commenced on the same day, being 23 September 2021. As such, the employer did not comply with s.180(2) and s.180(3) of the Act. Namely, the relevant employees were not provided with access to the Agreement throughout the access period and were not notified of the voting details by the start of the access period as defined under s.180(4) of the Act.

[5] The employer provided written submissions to address these issues, which can be summarised as follows:

Section 180(2)

•  The employer states that employees were provided with a notice on 23 September 2021 with information about how they could access a copy of the Agreement. The employees then had until 6 October 2021 to cast their vote.

•  Citing the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman), the employer states that the underlying purpose of s.180(2) is to “ensure employees have a reasonable chance to make an informed decision when voting”.

•  The employer notes that this was the second vote, as a previous vote was scheduled on 10 September 2021 but was cancelled after errors in the quantum and dates of the wages in the first proposed agreement were identified.

•  The employer submits that employees were given an accurate explanation regarding the quantum and dates of the wage increases in a document provided to them on 1 September 2021. Employees also had access to the written text of the first proposed agreement (albeit with the incorrect quantum of wage increases and dates of wage increases) from 1 September 2021. Therefore, the substantive text and content of the majority of the Agreement (other than the errors in relation to the wages) was available to employees from 1 September 2021.

•  Furthermore, that employees had from 23 September to 6 October 2021 (inclusive) to cast their vote. If the employer had complied with the requirements of s.180(2), the earliest time the vote could be held would have been 1 October 2021. In the current circumstances, employees had up until 6 October 2021 to cast their vote.

Section 180(3)

•  The employer states that it notified the relevant employees of the voting details on 23 September 2021, and voting commenced immediately after employees were notified. The employees then had until 6 October 2021 to cast their vote. Furthermore, out of the 86 employees covered by the Agreement, 56 cast a valid vote, with 47 employees voting to approve the Agreement.

•  Citing the Full Bench decision in Huntsman, 2 the employer states that the underlying purpose of s.180(3) is to “ensure employees are able to attend and participate in the voting process (should they choose to do so)”. The employer submits that employees were provided with 14 days to cast their vote and were therefore “able to attend and participate in the voting process”.

•  Furthermore, that there was a relatively high voter turnout, therefore the subsequent conduct of the employees is indicative that the relevant employees were able to attend and participate in the voting process. 3

•  That even if the 30 votes of the employees who did not participate in the vote voted not to support the Agreement, the Agreement would still have been made in accordance with s.182(1) of the Act.

[6] I have taken into account the employer’s submissions. Ordinarily, notification to employees of the time, place and method of vote on the day that voting commenced could not be said to constitute a minor procedural error. The same could be said of providing a final and correct copy of the Agreement to employees at the end, rather than at the commencement of the access period. However, all of the circumstances must be taken into account. The process followed in this matter saw that the employees had access to the substantive text and content of the Agreement (other than the errors in relation to the wages) from 1 September 2021. Further, the period of 14 days over which the voting process was conducted allowed a period of time in excess of the statutory minimum for employees to consider the final version of the Agreement and cast a vote. Taking into account the unique circumstances of this case, I am satisfied that the failures amount to minor procedural errors. The 14 days allowed for employees to cast a vote after receiving a final copy of the Agreement favours a finding that employees were not likely to have been disadvantage by the error. Further, in the event that the 30 votes of the employees who did not participate in the vote all voted not to support the Agreement, the Agreement would still have been made

[7] In the circumstances, I am satisfied having regard to the employer’s submissions and the Full Bench decision in Huntsman 4 that the matters outlined in paragraph [4] constitute minor procedural or technical errors for the purposes of s.188(2)(a) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2021. The nominal expiry date of the Agreement is 10 October 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE513668  PR735280>

1   [2019] FWCFB 318 at [74]

 2   Ibid.

 3 Ibid at [115].

 4   Ibid.

Annexure A