Suez Water Pty Ltd T/A Suez Water Pty Ltd – Asd P&T Alliance

[2022] FWCA 1557

[2022] FWCA 1557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Suez Water Pty Ltd T/A Suez Water Pty Ltd – Asd P&T Alliance

(AG2022/1226)

Suez Water Pty Ltd Adelaide Service Delivery Production and Treatment Electrical Trades Enterprise Agreement 2021 – 2024

Water, sewerage and drainage services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 11 MAY 2022

Application for approval of the Suez Water Pty Ltd Adelaide Service Delivery Production and Treatment Electrical Trades Enterprise Agreement 2021-2024

1. An application has been made for approval of an enterprise agreement known as the Suez Water Pty Ltd Adelaide Service Delivery Production and Treatment Electrical Trades Enterprise Agreement 2021-2024 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

1. The statutory declaration (Form F17) filed with the application states that the employees were provided with voting information on 6 April 2022 and that the vote was held on 13 April 2022. In these circumstances, the employees did not receive 7 clear days’ notice of the time, place and method of the vote as required by s 180(2) of the Act. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was involved with bargaining and all 24 employees covered by the Agreement cast a valid vote, the vast majority of whom voted to approve the Agreement. On review of the application, this issue was raised with the Applicant who provided submissions that this constituted a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act and that this did not impact on the employees ability to consider the Agreement prior to the vote. This response was provided to the CEPU and it was given an opportunity to provide a response. The CEPU did not provide a response. 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,[1]  this constitutes a minor procedural error for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the 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 subsection 188(2) of the Act.

1. The Applicant has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

1. Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The CEPU, 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.

1. The Agreement is approved and, in accordance with section 54 of the Act, will operate from 18 May 2022. The nominal expiry date of the Agreement is 1 September 2024.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

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