Royal Agricultural Society of NSW T/A Royal Agricultural Society of NSW, Australasian Animal Registry, Sydney Royal Easter Show, and Sydney Showground

[2020] FWCA 5831

[2020] FWCA 5831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Royal Agricultural Society of NSW T/A Royal Agricultural Society of NSW, Australasian Animal Registry, Sydney Royal Easter Show, and Sydney Showground
(AG2020/2551)

THE ROYAL AGRICULTURAL SOCIETY OF NSW AND THE AUSTRALIAN WORKERS’ UNION WORKPLACE AGREEMENT 2019

Amusement, events and recreation industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 30 OCTOBER 2020

Application for approval of the The Royal Agricultural Society of NSW and the Australian Workers’ Union Workplace Agreement 2019.

[1] Royal Agricultural Society of NSW has made an application for the approval of an enterprise agreement known as ‘The Royal Agricultural Society of NSW and the Australian Workers’ Union Workplace Agreement 2019’ (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] The model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[5] The Applicant sought an amendment to the application under s 586 of the Act, in order to provide a corrected signature page. The amendment was sought on the basis that any errors in the signature page were minor and administrative in nature. Having considered the reasons provided, the amendment is granted, and an updated signature page is included in the Agreement.

[6] The notification time for the agreement as defined in s 173(2) of the Act was 13 November 2019. It is unclear if all employees received a copy of the notice of employee representational rights (NERR) within 14 days, as contemplated by s 173(3). Section 173(1) requires that an employer ‘take all reasonable steps to give notice of the right to be represented by a bargaining representative’, and s 173(3) states that the employer ‘must give the notice as soon as practicable, and not later than 14 days, after the notification time.’ The notice that is referred to in s 173(3) is the notice in s 173(1). The primary obligation is for the employer to take all reasonable steps to give the notice, rather than ensure the notice is given in each and every case. Section 173(3) is concerned with the time within which this obligation is to be performed. In this case, the Applicant provided 14 copies of the NERR, on 13 November 2019, to one of the Applicant’s managers, and again provided 14 copies of the NERR at a bargaining meeting on 12 June 2020, to employee bargaining representatives and a union bargaining representative.

[7] 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 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, having regard to the content of the statutory declaration 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 s 188(2) of the Act.

[8] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[9] The Australian Workers’ Union (the organisation),being 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), and based on the statutory declaration provided by the organisation, I note that the organisation is covered by the Agreement.

[10] The Agreement was approved on 30 October 2020 and, in accordance with s 54, will operate from 6 November 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318.

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