Southern Metropolitan Cemeteries

[2021] FWCA 6097

[2021] FWCA 6097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Metropolitan Cemeteries
(AG2021/7511)

SOUTHERN METROPOLITAN CEMETERIES (OPERATIONS STAFF) ENTERPRISE AGREEMENT 2021

Cemetery operations
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 1 OCTOBER 2021

Application for approval of the Southern Metropolitan Cemeteries (Operations Staff) Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Southern Metropolitan Cemeteries (Operations Staff) Enterprise Agreement 2021 (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 (form F17) filed with the application indicated that the notification time for the Agreement was 14 April 2021 and the notice of employee representation rights was given to employees on 14 May 2021. This does not comply with the requirement in section 173(3) of the Act that the employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the Agreement. Relevantly, the forms F16, F17 and F18 reveal that voting on the Agreement did not occur until 3 September 2021 (more than three months after the notice was issued), the Australian Workers’ Union (AWU) was involved in bargaining, and 39 of 55 employees cast a valid vote and all voted to approve the Agreement. On review of the application, I formed the preliminary view, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman), 1 that this constituted a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act and the employees covered by the Agreement were not likely to have been disadvantaged by the error and that the Agreement had been genuinely agreed within the meaning of subsection 188(2) of the Act. My Associate wrote to the AWU to provide it with an opportunity to make any submissions it wished to make in response to that preliminary view. The AWU provided its view that the Agreement was negotiated in good faith, validly voted upon and employees were not disadvantaged due to the technical error. In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman, this constitutes a minor procedural or technical error for the purposes of paragraph 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 error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[3] I am satisfied that each of the requirements of sections 186, 187 and 188 as are relevant to this application for approval have been met.

[4] The AWU being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 8 October 2021. The nominal expiry date of the Agreement is 30 September 2022.

DEPUTY PRESIDENT

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 1   [2019] FWCFB 318