SAF Holland (Aust) Pty Ltd

[2019] FWCA 1309

[2019] FWCA 1309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SAF Holland (Aust) Pty Ltd
(AG2018/6996)

SAF HOLLAND (AUST.) PTY. LTD ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 28 FEBRUARY 2019

Application for approval of the SAF HOLLAND (Aust.) Pty. Ltd Enterprise Agreement 2018.

[1] SAF Holland (Aust) Pty Ltd has made an application for approval of an enterprise agreement known as the SAF HOLLAND (Aust.) Pty. Ltd Enterprise Agreement 2018 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The employer provided employees with access to a copy of the agreement, and any other material incorporated by reference, by placing copies in the break room from 28 November 2018. However, the employer has informed the Commission that one employee was absent from work and did not have access to these materials until 4 December 2018. As the voting commenced on 10 December 2018, this employee was not provided access to the materials throughout the 7 day access period in accordance with ss 180(2) and 180(4) of the Act. However, 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, 1this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, 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.

[3] 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.

[4] 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.
[5] Pursuant to s 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.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 Agreement covers the organisation.

[7] The Agreement was approved on 28 February 2019 and, in accordance with s 54, will operate from 7 March 2019. The nominal expiry date of the Agreement is 28 February 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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