Terminals Pty Ltd

[2023] FWCA 1178

[2023] FWCA 1178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Terminals Pty Ltd

(AG2023/999)

QUANTEM PORT BOTANY (SITES B AND C) ENTERPRISE AGREEMENT 2023

Oil and gas industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 27 APRIL 2023

Application for approval of the Quantem Port Botany (Sites B and C) Enterprise Agreement 2023

1. Terminals Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Quantem Port Botany (Sites B and C) Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Applicant did not provide seven clear days between notification of the vote and the commencement of the vote as required by s 180(3) of the Act – for three employees of the voting cohort. In response to this issue, the Applicant submitted the three employees were all aware of, and participated in, the vote. The Applicant further submitted that as it was not the case that these employees were unaware of the vote occurring and the underlying purpose of s 180(2) of the Act (being to ensure that employees are aware of the voting process and time and manner of the vote) had not been infringed upon by this procedural error.

1. The Applicant added that the employees all had the opportunity to take at least seven days to consider the material prior to voting.  While voting for the Agreement commenced at 8:00 AM on 23 March 2023, the voting ballot was open for four full days until 8:00 PM on Monday 27 March 2023.  The three relevant employees therefore had at a minimum (even if provided the letter on 17 March 2023) ten full days to consider any materials provided to them before voting on the Agreement closed.  As such, if they had chosen to do so, the employees could have taken more than seven days to consider the materials before casting their votes on the Agreement.  The Applicant pressed that this further supports the view that any defect was only minor and had not disadvantaged any of the employees.

1. The Applicant further noted that all three employees had been represented in bargaining by the United Workers’ Union (the organisation), which had endorsed the Agreement prior to the vote.  

1. I am satisfied that the employees were not disadvantaged and had sufficient opportunity to cast a vote as evidenced by the fact that all eligible employees cast votes.  I am satisfied, having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd,[1] that the abovementioned error constituted a minor technical or procedural error for the purposes of s 188(2)(a) of the Act. Further, I am satisfied that the employees were not likely to have been disadvantaged by the error.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

1. The organisation, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 27 April 2023 and, in accordance with s 54, will operate from 4 May 2023.  The nominal expiry date of the Agreement is 27 April 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

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