Sibelco Australia Limited

[2019] FWCA 1523

[2019] FWCA 1523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sibelco Australia Limited
(AG2019/161)

SIBELCO AUSTRALIA LIMITED RIVERTON ENTERPRISE AGREEMENT 2019

Quarrying industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 13 MARCH 2019

Application for approval of the Sibelco Australia Limited Riverton Enterprise Agreement 2019.

[1] Sibelco Australia Limited has made an application for the approval of an enterprise agreement known as the Sibelco Australia Limited Riverton Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The employer issued employees to be covered by the Agreement a Notice of Employee Representational Rights (NERR), by hand, at meetings on 25 and 26 October 2018. However, two employees were absent from site on long term absences and did not receive a copy of the NERR. The company realised this on 21 November 2018 and immediately sent the affected employees a copy of the NERR by post.

[3] The notification time for the agreement as defined in s 173(2) of the Act was
25 October 2018. Not all employees received a copy of the 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 employer overlooked two employees on long term absences and immediately provided the NERR when it realised its mistake. However, the company does not contend that it was not reasonably practicable to give the notice to the two employees (for example, because it could not locate them). It simply overlooked the two employees.

[4] Nevertheless, 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, having regard to the content of 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.

[5] 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.

[6] 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.

[7] The Agreement was approved on 13 March 2019 and, in accordance with s 54, will operate from 20 March 2019. The nominal expiry date of the Agreement is 20 March 2022.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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