Spantech Pty Ltd

[2020] FWCA 3148

[2020] FWCA 3148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Spantech Pty Ltd
(AG2020/1383)

SPANTECH PTY LTD ENTERPRISE AGREEMENT - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 16 JUNE 2020

Application for approval of the Spantech Pty Ltd Enterprise Agreement - 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Spantech Pty Ltd Enterprise Agreement - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Spantech Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Spantech Pty Ltd, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] I conducted a conference with authorised representatives of Spantech Pty Ltd and the employee bargaining representative for the Agreement to discuss some issues with the Application. As to the Notice of Employee Representational Rights (NERR):

a) The parties confirmed that the NERR was distributed to all employees at a meeting on 4 June 2019; and

b) It was noted in the NERR that the name of the enterprise agreement the Company was bargaining for was the Spantech Pty Ltd Enterprise Agreement - 2015 whereas the ultimate name of the Agreement is, as outlined above, the Spantech Pty Ltd Enterprise Agreement - 2020. As to this, I am satisfied that the name change has no impact on the scope or other terms of the Agreement and on that basis, it is a minor technical error 1 and further, that the employees were not likely to have been disadvantaged as a result of it.

[4] As to whether the Agreement was genuinely agreed, I am satisfied as a result of my discussion with the parties that Spantech Pty Ltd complied with the obligations in s.180(5) of the Act. I noted however that the employees were notified of the time and place of the vote and the voting method on 1 May 2020 and that the vote took place on 8 May 2020, meaning there were not 7 clear days’ notice given between the date of the notification and the date of the vote. Nonetheless, when the 6 out of 7 employees covered by the proposed agreement voted, they voted unanimously to approve the Agreement. I am therefore satisfied having regard to circumstances before me that the failure to provide the 7 clear days’ notice can be regarded as minor procedural error 2 and further, that the employees were not likely to have been disadvantaged as a result of it.

[5] Having regard to the matters outlined in [3] and [4] above, I am satisfied the Agreement has been genuinely agreed.

[6] I discussed a range of matters associated with the terms of the Agreement with the authorised representatives of Spantech Pty Ltd and the employee bargaining representative at the conference. Explanations were given in relation to the nature of Spantech Pty Ltd’s operations and the engagement of its employees. Spantech Pty Ltd has provided written undertakings. A copy of the undertakings, which was provided to the employee bargaining representative, 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 a substantial change to the Agreement. The undertakings are taken to be a term of the Agreement.

[7] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, together with my conclusions at paragraphs [3]-[5] 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.

[8] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 23 June 2020. The nominal expiry date of the Agreement is 16 June 2024.

DEPUTY PRESIDENT

Annexure A

 1   Fair Work Act 2009, s.188(2).

 2   Fair Work Act 2009, s.188(2).

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