Temples (WA) Pty Ltd

[2019] FWCA 5492

[2019] FWCA 5492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Temples (WA) Pty Ltd
(AG2019/2447)

TEMPLES (WA) PTY LTD LIVEHAUL CATCHERS ENTERPRISE AGREEMENT 2019

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 8 AUGUST 2019

Application for approval of the Temples (WA) Pty Ltd Livehaul Catchers Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Temples (WA) Pty Ltd Livehaul Catchers Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Temples (WA) Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 18 July 2019.

[3] On 30 July 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 5 August 2019. The undertaking deals with the following topics:

•  The Applicant will complete a weekly review of the payment to be made to each employee, if the employee would be paid more under the Road Transport and Distribution Award 2010 (the Award) than under the Agreement, the employee will be paid 1% more than had they worked under the Award.

•  The Applicant undertakes to ensure that a minimum break time of 30 minutes will be provided to employees under the Agreement.

•  The Applicant undertakes to ensure that the provisions in clause 27.3 of the Award, relating to rest periods after overtime, will be provided to employees under the Agreement as a minimum.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The Applicant identified that during the voting process it had failed to give one employee the opportunity to vote on the approval of the Agreement. As such I cannot find the Agreement was genuinely agreed according to s.188(1).

[8] The vote was conducted in person. The Applicant submits that the employee was overseas for a 3 month period, and they were denied the opportunity by way of oversight rather than malicious intent. The Applicant submits that had this employee been given the opportunity to vote, the outcome of the vote would have been the same. The Applicant submits that the Commission should consider this is a minor technical or procedural error which did not disadvantage the covered employees pursuant to s.188(2).

[9] Whilst (with the benefit of hindsight) the Applicant could have amended its voting processes to allow the overseas employee an opportunity to vote, I accept that the Applicant did not intend to disenfranchise the employee.

[10] Section 188(2) presents an alternative pathway to finding genuine agreement to s.188(1), 1 it presents a two pronged test whereby I must be satisfied that both the agreement would have been genuinely agreed under s.188(1) but for a minor technical or procedural error,2 and that no employees covered by the agreement are likely to be disadvantaged.3

[11] Section 188(2) imparts discretion, albeit narrow, 4 which allows a decision to turn on the facts.5

[12] In these somewhat unique circumstances, I accept that the agreement would have been genuinely agreed to within the meaning of s.188(1) but for the minor procedural error made.

[13] In the circumstances where 14 out of 17 employees cast a valid vote and 12 out of the 14 voted to approve the Agreement I find that the error would not have impacted on the outcome of the vote. The employee in question was otherwise appropriately consulted and provided with information about the proposed Agreement. Given the seemingly inevitable outcome of the vote, the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[14] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 14 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE504777 PR711108>

 1   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,

[2019] FWCFB 318, [35].

 2   Fair Work Act 2009 (Cth) s.188(2)(a).

 3   Ibid, s.188(2)(b).

 4   Above n 1, [117].

 5   Ibid, [55].